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By: Dan Cohen – 10/7/14

         You know the old saying, “time flies when you’re having fun.” It has been 50 years since President Lyndon Johnson signed Title VII into law. It was the first major civil rights legislation since the post-Civil War Reconstruction era. It was passed on the heels of a turbulent decade of civil unrest culminating in the Spring of 1963 when Americans from coast to coast watched civil rights demonstrators beaten, attacked by police dogs, sprayed with high pressure water hoses, arrested and jailed. In June of 1963, President Kennedy addressed the nation to say:

“The events in Birmingham and elsewhere have so increased the cries for equality that no city or State or legislative body can prudently choose to ignore them. . . . We face, therefore a moral crisis as a country and as a people. It cannot be met by repressive police action. It cannot be left to increased demonstrations in the streets. It cannot be quieted by token moves or talk. It is time to act in the Congress, in your State and local legislative body and, above all, in all of our daily lives. . . .Next week I shall ask the Congress of the United States to act, to make a commitment it has not fully made in this century to the proposition that race has no place in American life or law.”

          After much political maneuvering, some of which was triggered by cries for strengthening the bill after the bombing of a church in Birmingham Alabama that killed several black children, a bill was sent to the Rules Committee. It arrived the day before President Kennedy was assassinated. Five days after the assassination, President Johnson addressed a joint session of Congress and proclaimed: “We have talked long enough in this country about civil rights. It is time to write the next chapter and to write it in the books of law. . . .No eulogy could more eloquently honor President Kennedy’s memory than the earliest possible passage of the civil rights bill for which he fought so long.” Title VII was passed in June 1964 by strong bipartisan majorities in both houses, and signed into law by President Johnson on July 2, 1964.

          The law addressed discrimination in voting, public accommodations, and education, as well as employment.  As for employment, Title VII originally prohibited discrimination in employment decisions “because of” an “individual’s race, color, religion, sex, or national origin” and outlawed “limit[ing], segregat[ing], or classify[ing]” employees or applicants in any way that would deprive them of employment opportunities or adversely affect their status “because of” their “race, color, religion, sex, or national origin. In 1965, The Equal Employment Opportunity Commission (EEOC) was officially established. And, two years later, the Age Discrimination in Employment Act was enacted and expanded the protections of Title VII to employees at least 40 years old.

          The 1970s brought landmark Supreme Court decisions concerning the proofs necessary to establish a Title VII violation in McDonnell Douglas Corp. v. Green and Griggs v. Duke Power Co. These cases authorized two different methods of proving discrimination–disparate treatment and disparate impact–and one or the other is still applied in most discrimination cases involving circumstantial evidence. The Equal Employment Act of 1972 authorized the EEOC to bring civil actions in federal court against private employers. And, the Pregnancy Discrimination Act of 1978 banned discrimination on the basis of pregnancy, childbirth or related medical conditions.

          The 1990s brought about additional change. The Civil Rights Act of 1991 permitted jury trials in Title VII cases and added the legal remedies of compensatory and punitive damages, subject to certain caps depending on the size of the employer. And, in 1992, the Americans with Disabilities Act expanded protections to individuals with disabilities, those perceived to be disabled and those with a record of a disability. The 1990s also saw a trilogy of Supreme Court cases, which shaped the landscape in sexual harassment cases under Title VII. The Supreme Court, in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, spelled out the circumstances in which employers will be held liable for acts of sexual harassment carried out by their supervisory personnel and then ruled in Oncale v. Sundowner Offshore Services that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII.

          The Millennium brought more change. In 2008, the ADA Amendments Act of 2008 greatly expanded the coverage and protections of the ADA by overruling a series of Supreme Court cases which had narrowed the definition of what constitutes a “disability.” As a result, employers cannot expect to defeat an ADA claim on the basis that the individual is not disabled. In 2011, the Supreme Court in Wal-Mart v. Dukes made it significantly more difficult to certify a class in Title VII litigation. This is a major employer victory since the number of class actions has steadily grown since 1980 when the EEOC was first permitted to prosecute class actions without being certified as the class representative. Today, approximately 25% of the EEOC’s trial docket is devoted to class action litigation.

          Without question, more Civil Rights developments are on the horizon. We are presently witnessing a civil rights movement being asserted by the LGBT community. Yesterday, the U.S. Supreme Court refused to hear seven states’ appeals of decisions striking down laws banning same sex marriage. In Michigan, a cadre of disparate groups, including some businesses, have called upon the Legislature to add sexual preference to the list of protected classes under the Elliott Larsen Civil Rights Act.  The EEOC has publicly taken the position that discrimination against a transgender employee is discrimination on the basis of sex since 2012. And for years, courts have held that discrimination against an individual because he/she does not fit gender stereotypes is illegal.

          Will we ever reach a point where the demarcation between what is acceptable and what is discriminatory is firmly established, so that employers have clear guidance? Or will employers always have to worry about some new theory of discrimination or another group asserting Title VII and other civil rights statutes? Will polygamists use decisions striking down the state’s ability to regulate marriage to challenge the government’s ability to preclude multiple wives? Certainly, a billion dollar industry, the plaintiffs’ employment litigation bar, is invested in devising new arguments and representing new plaintiffs in Civil Rights claims.