Race, Racism and the Law 
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United States Report on Convention on Elimination of All Forms of Racial Discrimination,
  Initial Country Report (Sept, 2000). 

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Vernellia R. Randall
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Employment. The statutory centerpiece of the nation's effort to eliminate race discrimination in employment is Title VII of the Civil Rights Act of 1964. This Act was the first piece of legislation targeting race discrimination in employment since the post-Civil War era Civil Rights Act of 1866. Passage of this Act was the product of the civil rights movement and the gradual process of bringing race issues into the national conscience in the 1950s and 1960s. The original civil rights bill proposed in 1963 primarily addressed voting rights, denial of public accommodations, and denial of educational opportunities, but did not address employment discrimination. Employment discrimination was excluded because at the time it was considered to be an explosive issue that might defeat passage of the bill into law, just as many similar proposals had been defeated in the past.

Notwithstanding the immense controversy over whether the bill should prohibit discrimination in employment, the bill ultimately was amended to include Title VII. This title prohibits discrimination in employment on the basis of race, color, national origin, religion and sex. The types of prohibited employment discrimination include hiring, discharging, compensation, all terms, benefits and conditions of employment, and any limits, segregation, or classifications that would tend to deprive an individual of employment opportunities. 42 U.S.C. sec. 2000e-2(a). Moreover, the statute covers not only employers, but also employment agencies and unions. 42 U.S.C. sec. 2000e-2(b) and (c). Title VII also created a new, independent, bi-partisan executive agency, the Equal Employment Opportunity Commission (EEOC). Under Title VII, the EEOC was charged with enforcing Title VII by investigating charges of discrimination and attempting to resolve meritorious charges through conciliation.

Under the original enactment of Title VII, the EEOC lacked the authority to enforce the law in cases where the EEOC was unable to secure voluntary compliance. Between 1966 and 1971, numerous bills were introduced in Congress to amend Title VII. Some of these proposals would have granted cease and desist authority to the EEOC and expanded the scope of Title VII to include all employers, while others would have eliminated the EEOC altogether. During this period, statistics revealed a continuing high unemployment rate for racial minorities and a significant wage gap between Blacks and Whites. By 1971, it was evident that the voluntary approach in Title VII was inadequate to the task of eliminating employment discrimination.

In 1972, Congress enacted the Equal Employment Opportunity Act, substantially increasing the scope of Title VII and strengthening its enforcement mechanisms. Coverage of the act was expanded to include state and local governments, and the minimum number of employees or union members necessary to subject an employer or a union to Title VII was reduced from 25 to 15. In addition, the 1972 amendments created the first statutory mechanism for federal employees to pursue employment discrimination claims against the Federal government. Perhaps the most significant change in the 1972 amendments was the granting of litigation authority to the EEOC. Under this authority, the EEOC was empowered to file civil lawsuits in federal court after conducting an investigation and finding reasonable cause to believe discrimination had occurred. The amendments reserved for the Department of Justice the authority to file suit against state and local governments.

In 1990, a bill was introduced in Congress for the purpose of negating several decisions of the Supreme Court that had diluted the protections of Title VII. At the same time, civil rights advocates were proposing to expand the remedies available to victims of discrimination in the workplace. Although controversial, the bill was ultimately enacted into law as the Civil Rights Act of 1991. The Act contains many important provisions restoring protections eroded over time and creating new remedies. For example, the Act authorized jury trials and compensatory and punitive damages in cases of intentional discrimination. Previously, all trials were before judges, and monetary remedies were limited to lost past and future salary. In addition, the Act recognized "mixed motives" cases, whereby an employer violates Title VII if race was a motivating factor for any employment practice, even though other factors also motivated the employment decision. While the Act provided important substantive rights for victims of race discrimination, it did not resolve certain important questions. For example, the Act did not define the "business necessity" defense applicable to adverse impact claims, even though it was the subject of extended debate in Congress.

As the above example indicates, anti-discrimination laws undergo continuous revision in the United States. State anti-discrimination legislation receives similar treatment in each individual state legislature. The United States is committed -- at all levels of government -- to continue to review and revise existing legislation to adapt to a changing environment and to further more effectively the goals of the Convention.


Voting. By 1965, concerted efforts to break the grip of state-sponsored disfranchisement of Black voters had been under way for some time, but had achieved only modest success overall and in some areas had proved almost entirely ineffectual. The murder of voting-rights activists in Philadelphia, Mississippi gained national attention, along with numerous other acts of violence and terrorism. The conflicts culminated with the March 7, 1965 attack by Alabama state troopers on peaceful voting rights marchers who were crossing the Edmund Pettus Bridge in Selma, Alabama en route to the state capitol in Montgomery. This unprovoked act of violence persuaded the President and Congress to overcome Southern legislators' resistance to effective voting rights legislation. President Johnson issued a call for a strong voting rights law and hearings began soon thereafter on the bill that would become the Voting Rights Act.

Congress determined that the existing federal anti- discrimination laws were not sufficient to overcome the resistance by state officials to enforcement of the 15th Amendment. The legislative hearings showed that efforts by the Department of Justice to eliminate discriminatory election practices through case-by-case litigation had been unsuccessful: as soon as one discriminatory practice or procedure was proven to be unconstitutional and enjoined, a new one would be substituted in its place and litigation would have to commence anew.

The resulting legislation, which President Johnson signed into law on August 6, 1965, temporarily suspended literacy tests, and provided for the appointment of federal examiners (with the power to register qualified citizens to vote), in those jurisdiction that were "covered" according to a formula provided in the statute (now all or part of 16 states). In addition, under Section 5 of the Act certain "covered" jurisdictions were required to obtain prior approval, or "pre-clearance," from the Federal government (either the U.S. District Court in Washington, D.C. or the Attorney General of the United States) before they were permitted to implement any new voting practices or procedures. Section 2 of the Act, which closely followed the language of the Fifteenth Amendment, applied a nationwide prohibition of denial or abridgment of the right to vote on account of race or color.

Congress extended Section 5 for five years in 1970 and for seven years in 1975. With these extensions Congress validated the Supreme Court's broad interpretation of the scope of Section 5 pre-clearance. During the hearings on these extensions Congress heard extensive testimony concerning the ways in which voting electorates were manipulated through gerrymandering, annexations, adoption of at-large elections and other structural changes to prevent newly-registered black voters from effectively using the ballot. Congress also heard extensive testimony about voting discrimination that had been suffered by Hispanic, Asian and Native American citizens. In response to this latter concern, the 1975 amendments added protections against discrimination in voting for minority-language citizens.

In 1982, in response to the Supreme Court's decision in Mobile v. Bolden (holding that the Voting Rights Act prohibited only purposeful discrimination), and after extensive hearings, Congress amended Section 2 of the Voting Rights Act to prohibit expressly state practices or procedures that had the effect of discriminating against minority voters. This change has greatly strengthened the enforcement efforts of both the Department of Justice and private parties. In addition, in 1982 Congress also renewed Section 5 of the Act for twenty-five years.


Housing. For over 100 years after Reconstruction, governmental practices in the U.S. contributed to segregated housing in the United States. For many years, the Federal government itself was responsible for promoting racial discrimination in housing and residential segregation. This changed with the passage of the Fair Housing Act in 1968. Passage of this Act provided a sign of hope that the terrible racial divisions within the country, reflected in the violence that enveloped the Nation following the assassination of Dr. Martin Luther King Jr., could be healed. Declaring that it is "the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States," the Act prohibited discrimination in housing on the basis of race, color, religion, or national origin. At the time, the Act was hailed as "a detailed housing law, applicable to a broad range of discriminatory housing practices and enforceable by a complete arsenal of Federal authority." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 417 (1968). However, this characterization of the 1968 Act was true only when contrasting the Act with prior existing law.

The "arsenal of Federal authority" provided by the 1968 Act was far from powerful or complete. Indeed, the Supreme Court noted only a few years after Jones that "the Housing Section of the Civil Rights Division had less than two dozen lawyers," and concluded that "complaints by private persons [were] the primary method of obtaining compliance with the Act." Though the Attorney General had brought some important cases, the authority to initiate enforcement actions was limited to situations where there was a pattern or practice of discrimination or where a group of persons had been denied rights granted by the Act, and such denial "raise[d] an issue of general public importance." In addition, the Act limited the Attorney General to seeking "preventive relief," which the courts construed as limited to equitable relief. Although the 1968 Act empowered HUD to receive and investigate individual complaints of discrimination, neither HUD nor DOJ had authority to initiate enforcement actions based on such complaints. The Act required individuals to bring their own lawsuits if they desired judicial resolution of their claims.

In time, Congress recognized the impediments to effective Governmental enforcement of the 1968 Fair Housing Act and addressed them by passing the Fair Housing Amendments Act (FHAA) of 1988. The 1988 Amendments expanded the Act to cover discrimination against persons with disabilities and families with children and greatly expanded the Federal government's role in enforcing the Fair Housing Act: the amendments gave both HUD and DOJ the authority to address discriminatory complaints from individuals and gave DOJ specific authority to seek compensatory and punitive damages for persons aggrieved by discrimination in both individual and pattern-or-practice cases. In pattern-or-practice cases, the amended Act allows DOJ to seek civil penalties of up to $50,000 for a first violation and up to $100,000 for subsequent violations of the statute. This ability to obtain monetary relief greatly enhances DOJ's authority. Defendants now know that a suit by DOJ (or an administrative enforcement action by HUD) can mean costly damage awards and civil penalties in addition to litigation expenses.

After the amended Act went into effect, the number of civil fair housing cases brought by DOJ increased from approximately 15 to 20 in the years prior to the 1988 amendments to a peak of 194 cases in 1994.

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Thanks to Derrick Bell and his pioneer work: 
Race, Racism and American Law
(1993).