Which of the following is prohibited by Title VII of the Civil Rights Act of 1964?

The Adoption of Title VI

The Civil Rights Act of 1964 consists of various numbered titles (roughly equivalent to chapters) that address different specific topics. Probably the best known is Title VII, which prohibits workplace discrimination based on race, sex, religion, and national origin by all employers with 15 or more employees. Persons who work at government agencies, businesses, and private nongovernmental organizations are covered by this provision, including employees in emergency-related enterprises. Our focus, however, will be on a different provision of the same law—Title VI—which covers the programs and services provided by those entities.

Title VI, in § 601, states as follows:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Note that not all grounds for discrimination are prohibited. Sex-based discrimination is absent from Title VI; it is prohibited in Title IX of the act, which covers only educational facilities. Discrimination against disabled persons in federally funded activities was prohibited by Congress 10 years after the 1964 Act, first in a law called the Rehabilitation Act, which was expanded in 1990 to cover entities that do not receive federal funding. (See discussion below of the Rehabilitation Act and the Americans with Disabilities Act.)

The rationale for Title VI is straightforward. As Senator Hubert Humphrey stated during floor debate, “Simple justice requires that public funds, to which taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.” Only those entities that accept federal funds are bound by the requirements of Title VI.

Title VI prohibits both intentional discrimination (called disparate treatment) and policies that have the effect of discriminating (called disparate impact). DHS has illustrated disparate treatment with the following examples of actions that federal grant recipients are prohibited from taking, either directly or indirectly through contractual arrangements:

Deny program services, financial aids, or other benefits

Provide different program services, financial aids or other benefits, or provide them in a manner different from that provided to others

Segregate or separately treat persons in any matter related to the receipt of any program service, financial aid, or benefit

Restrict in any way the enjoyment of any advantage or privilege enjoyed by others receiving any program, service, financial aid, or other benefits

Treat persons differently from others in determining eligibility to receive services, financial aids, or other benefits

Deny persons the opportunity to participate in the program through the provision of services, or affording the opportunity to do so differently from those afforded others under the program

Deny persons the opportunity to participate as a member of a planning, advisory, or similar body.

The prohibition on disparate impact discrimination prohibits actions that have the effect of discriminating, even if the intent was not to discriminate. This means that a facially neutral policy may nonetheless violate the law if it disproportionately burdens a group of persons defined by race, color, or national origin. The key regulation establishing this principle applies to all federal agencies—roughly 30—that oversee the distribution of grants:

[Recipients shall not] directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.

DHS provides the following illustration for the concept of disparate impact:

Example:

A university that received a grant from DHS to conduct research on homeland security technologies advertised opportunities for student researchers in the university’s science and technology club. Club membership comprised mostly white students, and as a result, many interested and qualified minority students did not learn of the student research opportunities. While the university did not intend to exclude minority students from the research team, the methods by which it conducted recruitment had a disparate impact on minority students, who were otherwise interested in and qualified for the research opportunity. Unless the university can provide a substantial legitimate justification for why it restricted recruitment to the university’s science and technology club, the practice could be in violation of the Department’s Title VI implementing regulations.

3.1 Preferences in Hiring

Title VII of the Civil Rights Act of 1964 is a statutory measure designed to combat racial discrimination in employment situations. Charges of ‘reverse discrimination’ became common during the 1970s as more and more corporations and private businesses, often under pressure from federal enforcement agencies, began more aggressive hiring of minorities and women. The Court ruled unanimously in McDonald vs. Sante Fe Transportation Company, 427 US 273 (1976), that whites as well as blacks are protected from racial discrimination under the antidiscrimination provisions of Title VII. Despite this ruling, a number of subsequent court decisions have held that Title VII permits the preferential treatment of minorities and women in hiring and promotion decisions (but not in decisions affecting layoffs) if such treatment is part of an affirmative action plan designed to increase the employment of previously excluded or under-represented groups (see United Steelworkers of America vs. Weber, 443 US 193 (1976), Local 28 Sheet Metal Workers International Association vs. Equal Employment Opportunity Commission, 478 US 421 (1986), United States vs. Paradise, 480 US 149 (1987), and Johnson vs. Transportation Agency, Santa Clara County, 480 US 616 (1987)). Justice Brennan writing for the majority in Weber explained ‘It would be ironic indeed if a law triggered by a nation's concern over centuries of racial injustice and intended to improve the lot of those who had been excluded from the American dream for so long constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.’ However, the Court's subsequent support for affirmative action is quite fragile as shown by the many 5:4 decisions, the restrictions placed on affirmative action programs with regard to layoffs in Firefighters Local Union No. 1794 vs. Stotts, 467 US 561 (1984), and Wygant vs. Jackson Board of Education, 476 US 267 (1986), and the changing composition of the Court.

1.1 Employment

The leading federal antidiscrimination statute in the employment field, Title VII of the Civil Rights Act of 1964 (known as ‘Title VII’) was stimulated by the violent resistance by the South to court-ordered racial desegregation and to the 1960s civil rights movement. Title VII prohibits discrimination on the basis of race, color, sex, religion, and national origin. Although feminist activists lobbied for the inclusion of sex discrimination, the statute as originally proposed left sex discrimination out. It was included through an amendment proposed by a congressional opponent of the statute, whose confidence that including sex would block passage of the statute proved misplaced. Once enacted, however, the prohibition of sex discrimination has been a robust and creative aspect of statutory enforcement.

Employment discrimination on the basis of age and disability was subsequently addressed in the Age Discrimination in Employment Act (1967) and Americans with Disabilities Act (1993). Legally-focused civil rights movements on behalf of non-racial groups (such as the development of the disability-rights movement and its involvement in the design of the Americans with Disabilities Act) have contributed to these legal developments. Not all groups have met with success: for example, Congress has yet to enact legislation barring employment discrimination on the basis of sexual orientation.

In the early years of race discrimination litigation under Title VII, the Supreme Court developed three basic proof structures: ‘individual disparate treatment,’ ‘pattern and practice,’ and ‘disparate impact.’ None of these terms appear in Title VII itself, which speaks most generally in terms of discrimination ‘because of’ race, sex, and so forth. The ‘individual disparate treatment’ and ‘pattern and practice’ proof structures turn upon proof of the employer's discriminatory intent. The disparate impact proof structure does not. Relying instead upon proof of discriminatory effects of racially-neutral practices.

In the ‘individual disparate treatment’ case, intent is an inference drawn by a factfinder (judge or jury) from a variety of types of circumstantial evidence aimed at refuting the possible nondiscriminatory reasons for an adverse employment action. While this sounds relatively straightforward, the Supreme Court surprised the plaintiffs' bar in 1993 by holding that merely establishing the required prima facie case and disproving the employer's stated justification for its action does not entitle the plaintiff to a victory (Malamud 1995), and has only begun to clarify the circumstances under which doing so entitles the plaintiff to go to trial.

In ‘pattern and practice’ cases, plaintiffs (most often a group of plaintiffs using the procedural mechanism of the class action) rely primarily on labor market analysis and statistical evidence to create an inference of intentional discrimination. The theory underlying the use of statistics is that, absent discrimination, each employer's workforce would resemble the racial composition of the relevant labor market. Employers' defense consists chiefly of attacks on the appropriateness of the plaintiffs' labor market definition and on the accuracy of their statistical analysis. Because the pattern and practice case is so reliant on expert testimony, these cases are expensive to litigate and often push the courts beyond their level of technical expertise.

In a disparate impact case, a plaintiff or plaintiff class challenges a facially-neutral employment practice (for example, a test) on the grounds of its disparate adverse effects on members of her group. So, for example, in the case of Griggs v. Duke Power Co. (401 US 424 [1971]), markedly lower proportions of blacks and Latinos than whites in the relevant labor market passed standardized aptitude tests and had high school diplomas, leading to diminished access to preferred jobs in the employer's workforce. Absent a showing of ‘business necessity’ or ‘job relatedness,’ the Supreme Court held, employers could not use tests and other hiring criteria that placed ‘arbitrary headwinds’ in the way of the progress of traditionally excluded groups. In 1988 and 1989, the Supreme Court made it markedly harder for plaintiffs to win cases under the disparate impact proof structure; legislation in 1991 rewrote the statute to eliminate some but not all of the effects of those decisions. (See Hunter and Shoben 1998, for a discussion in a comparative context.)

Even after Congress passed clarifying legislation in 1991, elements of the disparate impact proof structure remain uncertain. Because these cases involve comparison-group definitions, questions are raised in every case as to whether the reference group should be employer's existing labor force, the applicant pool, or some other definition of the relevant labor market. The current standard for showing disparity has been criticized for failing to comport with social-scientific definitions of statistical significance (See, e.g., Meier et al. 1984). The precise conceptual content of the phrases ‘business necessity’ and ‘job relatedness’ is still subject to doubt, particularly when disparate impact analysis is used to challenge employment practices other than paper-and-pencil tests (where ‘job relatedness’ has long been tested through psychometric techniques of test validation). In addition, while the use of disparate impact analysis is now provided for by statute in the case of Title VII and the Americans with Disabilities Act, its availability under federal age discrimination legislation is open to serious doubt.

One area in which Title VII law has been relatively stable is the law of affirmative action. Under United Steelworkers of America v. Weber (442 US 193[1979]), employers are permitted to use affirmative action (if it is consistent with standards laid out in that opinion), and the Supreme Court reiterated more recently that the employer does not need to prove that its own prior policies were discriminatory in order to do so (Johnson v. Transportation Agency of Santa Clara County, 480 US 616 [1987]). The debate among the justices in these cases was open and virulent, and yet affirmative action in employment has not provoked recent challenge (in contrast to the status of affirmative action under the constitution, discussed below). The Supreme Court's embrace of affirmative action in employment is not without limits, however, and as of 2001 there is a mismatch between current social practice and the Supreme Court's past opinions. The Supreme Court has never held that the desire for greater diversity is a permissible basis for affirmative action under Title VII but, despite that fact, diversity is the major stated justification for many affirmative action programs. In addition, the Court has never held that Title VII permits the use of affirmative action principles in making layoff decisions.

The example of American employment discrimination law shows that the true state of antidiscrimination law cannot be assessed merely by looking at the written laws themselves. One must also be aware of how the statutes are being interpreted by courts and/or relevant administrative agencies; of how generally applicable procedural and evidentiary rules are used in discrimination cases; of the expense of litigation; and of the practical availability of experts with necessary skills and experience. One must also have a sense of trajectory (is the law becoming more or less friendly to plaintiffs over time?) and of symmetry (are similar laws being interpreted in similar or dissimilar ways?).

2 An Altered Vision

Three years later, under the presidency of Lyndon B. Johnson, Congress passed the Civil Rights Act of 1964, which banned discrimination in employment, education, and public accommodations. The act did not include the phrase ‘affirmative action’; it rested on the vision earlier articulated by President Kennedy who declared that ‘race has no place in American life or law.’

Within a few years, however, the clarity of that moral stance was lost. Civil rights advocates adopted the view most famously stated by Supreme Court Justice Harry Blackmun in 1978. ‘In order to get beyond racism we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.’ By the late 1970s, the vaguely Orwellian notion that some persons must be treated ‘differently’ in order to treat them ‘equally’ had become civil rights orthodoxy, and it remains so today.

The revised view sanctioned racial double standards. If established selection procedures resulted in a statistical ‘underrepresentation’ of blacks, Hispanics, or American Indians in a particular business, profession, or college, they should be revised to remedy the ‘imbalance.’ Equal opportunity thus became synonymous with equal group results—proportionate racial and ethnic representation in selective schools, in places of employment (public and private), and in the awarding of governmental contracts.

Blackmun's idea was not new. ‘You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line in a race and then say, “you are free to compete with all the others,”’ President Johnson had said in 1965. Opening ‘the gates of opportunity’ would not suffice; racial ‘equality as a fact and as a result’ had to be the nation's goal. Although the president did not use the term ‘affirmative action,’ his image of blacks as crippled by racism laid the foundation for a generation of race-conscious measures designed to ensure ‘equality as a fact.’ Handicapped citizens were entitled to compete under different rules.

Perhaps this radical departure from the color-blind conception of fairness that had been advocated by liberals for many decades would have met with greater resistance if it had not been proposed on the eve of riots that erupted in the nation's cities in the summer of 1965. The looting, burning, and fighting sent tremors of fear and guilt through white America, and a subsequent official (Kerner Commission) report that purported to explain the disorders set the tone for subsequent civil rights discourse and policy. America was in grave danger of becoming ‘two societies—separate and unequal’—the report concluded. It was an invitation to aggressive race-conscious action to ensure equality and thus close the divide.

Given the long and ugly history of American apartheid, the demand for equal results—blacks in the workplace and other settings in proportion to their numbers—was understandable. But it was impossible to square race-conscious measures (amounting inevitably to preferences) with the antidiscrimination language of the 1964 act and the Fourteenth Amendment to the Constitution, which guaranteed ‘equal protection’ to all Americans. Civil rights warriors in the 1950s and early 1960s had marched and died to rid the country of discriminatory policies; now, in revised form, they were back. Preferences involve discrimination against members of nonfavored groups.

2 Affirmative Action in the Shadow of Title VII of the Civil Rights Act of 1964

Affirmative action in the United States has been implicitly encouraged by judicial interpretation of Title VII of the Civil Rights Act of 1964 (CRA), and explicitly required, but not defined, by Executive Order 11246 applied to federal contractors. From its inception, the CRA has embodied a tension between words that bar employment discrimination, and a Congressional intent to promote voluntary efforts to redress discrimination. The courts have struggled with making room for what they sometimes saw as the intent of Congress within the language of the CRA. In later cases, the Supreme Court read Section 703(J)'s bald statement that ‘Nothing in the act shall require numerical balancing’ as allowing numerical balancing as a remedy. In other cases, the court held that the act should not be read to bar voluntary acts to end discrimination. These cases left considerable if ambiguous room for affirmative action. The threat of costly disparate impact litigation under Title VII following the Griggs v. Duke Power case created considerable incentive to undertake affirmative action.

The extent of ‘voluntary’ (or at least non-judicially directed) affirmative action taken in response to Title VII can be roughly estimated from existing work on the overall impact of Title VII. Because firms directly subjected to litigation under Title VII represent such a small share of employment, the bulk of the black economic advance credited to Title VII must be due to its indirect effect in promoting ‘voluntary’ affirmative action. For example, Freeman (1973) shows the overall impact of Title VII in the time series of black–white earnings differentials. From this, the direct impact of Title VII litigation at companies sued for racial discrimination could be subtracted. While these impacts are substantial at the companies incurring litigation, employment at such companies makes up only a small fraction of employment. The impact on market wages from the outward shift in the demand curve for blacks at these companies can only be small given their small share of the market. Most charges of discrimination never result in litigation, and much litigation never reaches a judicial decision, leaving ambiguous interpretation and little trail. It is likely that the bulk of the changes attributed to Title VII are in a broad sense the result of affirmative action taken in response to the indirect threat, rather than the direct act, of litigation. Since the impact of Title VII is at least an order of magnitude greater than that of the contract compliance program, and only a small share of this could have occurred at companies directly litigated against, the biggest impact of affirmative action, broadly defined, very likely took place in the shadow of Title VII. To date, no one has filled in the blanks in the calculation just outlined.

One difficulty in evaluating the impact of a national law such as the 1964 CRA is that a contemporaneous group unaffected by the law is usually lacking for comparison. In the case of Title VII, Chay (1998) overcomes this problem by examining the impact of the Equal Employment Act of 1972, which extended the reach of Title VII to smaller establishments. Chay finds that once smaller establishments came under Title VII's coverage, the relative employment and pay of blacks improved at these small establishments. Again, very little of this can be the direct result of litigation against small establishments.

3.2 Government Accountability

The second growth stage of HRM, the ‘government accountability’ stage, began soon after the Civil Rights Act of 1964 was passed. Laws governing antidiscrimination, pensions, and health and safety were enacted, federal agencies to enforce the laws were created, and court rulings affecting almost every aspect of the employment relationship were issued. All of these events accelerated the rise and importance of the HRM function. Class action lawsuits and the large financial settlements for the winning suits illustrated the costs of mismanaging people. Managers outside the HRM function began to take notice because top management let them know that ineptitude in this area would not be tolerated. Staying out of federal court became a top organizational priority. These trends also signaled the need for specialized competence in each aspect of HRM. Thus specialties began to appear in compensation and benefits, affirmative action (the promotion of minority concerns in all aspects of employment), labor relations, and training and development.

Analysis

It is important to keep in mind that NFB v. Target Corp. was always much more linked to state law than federal law. A ruling for the plaintiff was unlikely to advance the ADA’s reach beyond its applicability to California law. In her rulings, Judge Patel cited the Unruh Civil Rights Act of California, California Civil Codes Sections 54 through 55.2, and the California Physical Access Laws. These state legislations required accommodation for people with disabilities in electronic media; mentions of Section 508 and Title III of the ADA are in relation to California Government Code Section 11135-11139.8, which is outlined here (note bold text for emphasis):

California Government Code Sections 11135 through 11139.8 provide protection from discrimination from any program or activity that is conducted, funded directly by, or receives any financial assistance from the State. This section brings into State law the protection of Title II of the ADA, which ensures accessibility to government programs and also requires State government to follow accessibility requirements standards of Section 508 of the Rehabilitation Act, which ensures the accessibility of electronic and information technology.

That said, there are some bright spots regarding compensation. The court document stated “each Eligible Claimant shall be awarded: (i) three thousand five hundred (3500) dollars per Valid Claim, as determined by the Claims Administrator, with a maximum of two allowable Valid Claims per Eligible Claimant.” Doing the math, it adds up to a maximum of $7000 to be paid for two unsuccessful attempts to use Target.com with a screen reader. Even recognizing the sheer size of a company such as Target, this isn’t an insignificant amount to be paid for what essentially amounts to an inconvenience.

Given the comparatively low number of legal precedents, which would have established markers for requirements and compensatory damages, the outcome was about as good as one could expect. That the case was heard at all demonstrated a step forward, as decisions made in state law can sometimes extend beyond state borders. It was also clear that a major retailer could potentially face a lawsuit for not addressing its online customers with disabilities. But to what degree was NFB v. Target Corp. a win for digital outcasts?

2.1 The Creation of Ghettos and Barrios: The Role of Segregation

During the 1940s and 1950s, the USA underwent a rapid expansion of its industrial and manufacturing sectors. African-Americans seeking to improve their quality of life migrated in large numbers from the south to major urban growth centers throughout the USA. Segregated housing, restrictive covenants, and zoning practices forced many of these African-American migrants to seek shelter in older sections of cities. Segregation and discrimination also limited employment and advancement opportunities, which in turn impacted earning power. As a consequence, African-Americans were disproportionately concentrated in low-income and often poverty neighborhoods called ghettos (Drake and Cayton 1945, Clark 1965, Dubois 1967). Even after the passage of Title VI of the Civil Rights Act of 1964 and Title VIII of the Civil Rights Act of 1968, real estate agents, mortgage brokers and lenders continued to make it difficult for African-Americans to acquire housing outside of inner city areas. As a consequence, African-Americans, unlike their white counterparts, have much lower home ownership rates, one of the key ways Americans accumulate wealth (Bullard et al. 1994, Oliver and Shapiro 1995). Massey and Denton are two scholars who maintain that racial segregation and not economic segregation have played a major role in the continued growth of ghetto poverty (Massey and Denton 1993).

During the 1970s, 1980s and 1990s, a large number of immigrants from Latin America, in particular from Mexico, have come to the USA. To a certain extent, these immigrants find themselves relegated to poverty areas or barrios, much like African-Americans did before them. More recently, immigrants from various Asian countries, particularly Vietnam, Cambodia, and Laos have been moving to American cities. In 1990, foreign-born residents constituted 10 percent of all those living in concentrated poverty areas, up from 3.5 percent two decades earlier (Mincy and Wiener 1993, Table 6). As of yet, no single term has emerged to describe Asian poverty neighborhoods. Although references to China Towns, Little Tokyos, and Little Vietnams often imply similar conditions to ghettos and barrios. Like African-Americans, the new immigrants also find that their poverty neighborhoods suffer from inferior schools, high crime rates, inadequate housing, and limited employment opportunities. Language barriers and low educational achievement seem to be key factors contributing to the concentration of these new immigrants in poverty neighborhoods.

While researchers have easily identified poverty neighborhoods with a predominance of racial minorities, that is ghettos and barrios, few predominately white poverty neighborhoods or slums are evident in metropolitan areas. This is not to say that there are no whites in poverty; quite the contrary, the largest number of individuals in poverty are whites. It is just that poor whites are distributed throughout cities and not particularly concentrated in certain neighborhoods.

1 A Short History of Research on Sexual Harassment

It is no doubt safe to assume that sexual harassment has been around for a long time, but it has been labeled, studied, and legislated for only about 20 years. In 1978, journalist, Lin Farley wrote Sexual Shakedown to bring attention to the phenomenon. In 1979, legal scholar, Catharine MacKinnon wrote an influential book that would provide a legal framework for dealing with sexual harassment in the US. MacKinnon argued that sexual harassment was a form of sex discrimination (i.e., denies women equal opportunity in the workplace) and therefore Title VII of the 1964 Civil Rights Act, which forbids discrimination on the basis of sex (among other social categories), should apply. A year after her book was published, the US Equal Employment Opportunity Commission established guidelines on sexual harassment. Early empirical studies of sexual harassment in the workplace and academia started appearing in print about the same time. By 1982, at least one journal (Journal of Social Issues) had produced a whole issue devoted to scholarship on the topic. Today sexual harassment is studied by scholars in many countries who work in many fields, including law, psychology (clinical, forensic, organizational, social), sociology, management and human resources, history, anthropology, communication, and the humanities. Within the social sciences, sexual harassment is studied through quantitative techniques that focus on the measurement of constructs and determination of base rate statistics and qualitative case-study techniques focusing on specific occupations such as wait staff and female coal miners.