The most comprehensive piece of anti-discrimination legislature that the United States has ever come up with.

It was first proposed by John F. Kennedy in 1963 but he was unable to get it through Congress (one of the problems Kennedy was plagued with throughout his short time as president.) Lyndon Johnson finally pushed it through into law in 1964.

What It Says

The act was immediately protested by segregationalists in the South and led to a wave of violence and broader support for pro-segregation politicians.

In case it isn't already completely obvious because of the length and language used, this is a paper I wrote for a class a few years ago. It gives a history of this bill's passage into law, and a pretty good picture of politics in action, much more than the average bill.

It began in 1963, when President Kennedy finally prepared civil rights legislation under pressure from the national media and from his brother, then Attorney General Robert Kennedy. The president chose to let Congressman Emanuel Celler (D-N.Y.), chair of the House Judiciary Committee, sponsor the bill, as Celler had been responsible for attempts at civil rights legislation in the past. Introduced into the House of Representatives on June 20th, it was sent by Speaker John McCormack (D-Mass.) to the Judiciary Committee with the title HR 7152. Celler immediately assigned it to Subcommittee 5, chosen both because Celler chaired that subcommittee and because it had a majority of liberal Democrats, and scheduled hearings.

The subcommittee first heard from Robert Kennedy, as his department would be responsible for enforcing the bill, were it to pass. After an opening statement and hours of questioning, Robert Kennedy made an important slip. Questioned about a similar bill introduced earlier by Representative John Lindsay (R-N.Y.), who was sitting on the subcommittee, Kennedy replied:

Kennedy: I am not. As the chairman said, there are 165 bills or 365. I have not read them all.
Lindsay: I am quite deeply disturbed, Mr. Attorney General, that you have never bothered to read this important legislation—
Kennedy: Congressman, I am sorry that I have not read all of the bills, and I am sorry that I have not read your bill.
Lindsay: In view of the fact that you apparently did not consider these bills at all, I can’t help but ask the question as to whether or not you really want public accommodations legislation or not. This is a question I would like to have an answer to. I should like to add this one comment to this question. Let us be frank about it. The rumor is all over the cloakrooms and corridors of Capitol Hill that the administration has made a deal with the leadership to scuttle the accommodations.
Kennedy: I am surprised by this, but maybe I shouldn’t be, that you would come out here in this open hearing room and say that you heard these rumors in the cloakroom. I think it has been made clear…and I don’t think the president nor I have to defend our good faith in our efforts, here to you or to really anyone else…I want this legislation to pass. I don’t think, Congressman, that I have to defend myself to you about this matter.

After being confronted with his unintended insult of Representative Lindsay, Kennedy went even further, cavalierly dismissing Lindsay’s concerns, not even giving him the respect to call him Mr. Congressman, as is common etiquette during hearings, and so escalated a situation he could have quickly resolved. The next day the president tried to repair the damage, as Secretary of Labor W. Willard Wirtz began his testimony before the subcommittee with an apology, and a plea for nonpartisan cooperation, but it was too late. Liberal Republicans, a key group necessary for the passage of HR 7152, had been angered by the attorney general, and so were withdrawing their support. Meanwhile, conservative Republicans saw the possibility of a weakened president, and so would not move to help. To bring both back to the table, the administration attempted to win the support of an important moderate Republican, William McCulloch (R-Ohio), senior Republican in the House Judiciary Committee.

During the 4th of July recess, Assistant Attorney General Burke Marshall was sent to Ohio to meet with McCulloch personally. After the meeting, Marshall had received McCulloch’s backing, but only under two conditions: That the administration prevent the Senate from substantially weakening the bill, and that the president give equal credit to the Republicans for the bill if it passed.

When the recess ended, Emanuel Celler continued the hearings, listening to over 100 witnesses from several interest groups and finishing by August 2nd. At this point Celler claimed that the bill was going into markup, but in reality President Kennedy had asked that the bill be put on hold. An important tax bill was before the House Ways and Means Committee, which included seven southern Democrats and ten Republicans. Fearing that they would retaliate for any civil rights legislation by killing his tax bill, Kennedy decided to let HR 7152 sit until the tax bill cleared committee. So for two weeks no markup sessions were held, and for another two weeks they took place without any amendments proposed. At the same time, McCulloch met with the Justice Department to draft a civil rights act that would be acceptable to all parties involved, including the president, Democrats, and both liberal and conservative Republicans.

Meanwhile, civil rights groups congregated in New York to plan demonstrations and lobbying in support of HR 7152. Although excited that a bill was before Congress, many civil rights leaders pushed for even stronger legislation, and pushed for it to pass quickly. Most notably, they planned a rally at the Lincoln Memorial, to take place on August 28th, that came to be known as the March on Washington, where Martin Luther King Jr. gave his “I Have a Dream” speech. That night President Kennedy met with Martin Luther King and other important civil rights leaders, both to thank them for their support and convince them that stronger legislation had no chance of passing Congress.

When the President’s tax bill finally reached the floor, Celler began markup in earnest. He held meetings in as much secret as possible, in order to prevent angry Southerners from punishing Kennedy for the Civil Rights Act by voting against his tax bill. In running markup sessions, Celler ignored the Kennedy Administration’s instructions for leading amendments so that they might closely match the compromise made with McCulloch. Instead, Celler planned to send a much stronger bill out of the subcommittee, so that passages could be traded out of the bill in exchange for other concessions from conservative Republicans and southern Democrats. His hope was to first pacify civil rights lobbyists by sending out a strong bill, and then to make the conservatives seem more powerful to their constituents by giving large concessions. He had followed this same strategy in 1957 and 1960 for other civil rights bills.

So during markup Celler first stated that all votes on amendments would be tentative. Conservative congressmen then were more willing to accept amendments strengthening the bill, as they could all be fought over later. And so the bill became much stronger, as Celler intended. On October 1st, having the bill he desired, Celler reversed his position and stated that all previous amendments were now permanent. Using his power as chair of the subcommittee, Celler quickly rejected all Republican attempts to amend the bill further, and on October 2nd he held a vote to send the bill favorably out of subcommittee. With a liberal Democratic majority, he quickly succeeded.

Celler’s actions angered many, most notably Bill McCulloch. To him, Celler’s actions seemed to break an agreement he had with the administration over the content of the bill, making it so strong that it would have no chance of passing Congress. Other Republicans on the Judiciary were angered as well by Celler’s disregard for their input on the subcommittee bill. So these fourteen Republicans held a meeting with House Minority Leader Charles Halleck (R-Ind.) and told him unequivocally that they would not cut back on Manny Celler’s amendments to the bill. They would not take the blame for “gutting HR 7152,” when in reality all they would be doing would be to pare it down to its original size. Whereas before Celler’s strategy had worked, the fact that the president was a Democrat meant that the Republicans could not be sure of the presidential backing they had in 1957 and 1960, and so they would not risk the political backlash to repairing Celler’s bill.

Halleck notified the administration of the Republican stance, stating that they would only offer half of the amendments required to fix the bill. So Marshall Burke again met with McCulloch, this time with Deputy Attorney General Nicholas Katzenbach, to negotiate a second agreement, whereby the bill would be moderated by both Republicans and Democrats. But again Celler unintentionally broke the agreement. The first amendment was offered by Democratic Congressman Roland Libonati (Ill.) at Celler’s behest, as planned, but the committee did not have enough time to vote on it before adjourning. A few days later, Celler was on the news, and denied having anything to do with attempts to water down HR 7152, in essence placing all blame on Libonati for an amendment he was ordered to offer.

When the committee reconvened on October 22nd, Libonati withdrew his amendment, effectively killing the agreement made with McCulloch. A frustrated Arch Moore (R-W.Va.) moved to report the bill favorably to the House. Once made, the motion had a surprisingly high chance of passing. Those against HR 7152 would vote it out so that it would be sure to fail in a vote on the floor, and those for it would be able to look good to civil rights activists by sending out a powerful bill. But just as in the last meeting, the meeting adjourned before there was time for a vote to be taken, giving the administration time to broker one last agreement with McCulloch.

Again McCulloch sat down, this time with Katzenbach and Celler, at a preliminary meeting to negotiate a compromise bill. Meanwhile, President Kennedy personally lobbied Democrats on the Judiciary Committee to defeat the Moore motion, while Halleck agreed to get Republicans to vote down the motion as well. Once McCulloch finished his meeting with Katzenbach and Celler, he met with Lindsay to negotiate the compromise, for any compromise made would have to have the support of liberal Republicans like Lindsay. The final bill was stronger than the original HR 7152, but weaker than the subcommittee version.

The Judiciary Committee reconvened on October 29th. This time the Justice Department gave Celler a script to follow, unwilling to see him destroy another agreement. The first order of business was the vote on the Moore motion, which failed. Immediately afterwards Celler offered the new compromise bill as a single amendment, and had it read aloud to the committee. The reading was finished by 11:52, leaving only eight minutes before the committee would have to adjourn for the day. Celler spoke about the merits of the bill for a single minute, although he had planned to speak longer, and gave McCulloch exactly one minute to speak as well. With six minutes left, Celler motioned for a vote, and the compromise bill was accepted.

Having survived the long committee process, HR 7152 still had to be sent to the Rules Committee for a rule on debate, and this had its own problems. The Rules Committee was chaired by Howard Smith (D-Va.), a conservative that was loath to send out any civil rights bills. So for more than three weeks the bill sat in the Rules Committee without very good chances, until the assassination of President Kennedy changed the political climate.

When Lyndon Johnson came into office, he immediately worked for the passage of HR 7152, telling his advisers that, “The first priority is passage of the civil rights act.” He used Kennedy’s death as political capital. Less than a week after Kennedy’s death, he said in a speech during a special joint session of Congress that, “No memorial oration or eulogy could more eloquently honor President Kennedy’s memory than the earliest passage of the civil rights bill for which we have fought so long.” He went public, speaking before cameras of the problems of segregation, and behind the scenes he talked to important civil rights leaders, assuring them of his support and asking for their help, and so these organizations increased their lobbying pressure on Congress, focusing much less on demonstrations. Johnson also met with labor heads to ask for their support, and talked to important congressmen about the fate of the bill.

All of this spurred Congress to action on its attempts to extract HR 7152 from Howard Smith’s Rules Committee. There were several options: Since thirty days had passed since the bill had entered the Rules Committee, a majority of congressmen could file a discharge petition, under House Rule 27, which would take the bill out of committee and to the floor. The problem was that Bill McCulloch did not endorse such a strategy, believing it improper to take power away from the committee, and without his support it was doomed to failure. The second option was use of Calendar Wednesday, whereby any chairman can ask that a bill from his committee that is already in the Rules Committee may be brought out to be debated for two hours and then voted on. This tactic was not used because, of the eleven committees called before the Judiciary, six were headed by Southerners, who could simply delay until Calendar Wednesday was over, preventing Celler from ever having a chance to make his request.

HR 7152 was finally removed from the Rules Committee from within. House Rule 11 states that any three members of a committee may request a meeting. If after three days the chairman has ignored them, a majority may order one meeting on a specific subject. Democrats could give five of the eight votes constituting a majority, and the influential Clarence Brown, Sr. (R-Ohio) controlled another five. Upon threat of holding such a meeting and thereby cutting all power away from Howard Smith, the chairman relented and scheduled hearings for January 9th, 1964. During the hearings, Smith asked barbed questions of Celler and McCulloch, referring once to “the nefarious bill,” and at another time stating that it was “as full of booby traps as a dog is full of fleas.” Nevertheless, he did not attempt to block it, for he knew that he was powerless to do so. On January 30th, HR 7152 got a rule, with a vote of 11-4.

The next day, January 31st, Congress resolved itself into the Committee of the Whole to hear debate on the bill. The rule allowed for five hours of debate for each party. Celler represented the Democrats and McCulloch the Republicans as both became floor leaders. For the next two days debate was dived equally between proponents of the bill and Southerners who were strongly opposed to it. The third day ended debate and began the amendment process, during which each title was read one at a time, and anyone was allowed to offer an amendment which could be debated with a limit of five minutes per person.

Although McCulloch and Celler had the votes to prevent any amendments from cutting the bill, the danger was that as time went on, people would leave to attend to other business, leaving the Southerners to pass amendments despite their small numbers. Ironically, the reverse seemed to happen as volunteers patrolled Congressional offices making sure that everyone voted any time an amendment arose. As Southerners lost amendment after amendment, they began showing up in smaller numbers. Celler and McCulloch agreed to a remarkable extent as to which amendments to endorse, and those amendments passed were almost exclusively those endorsed by both. A notable exception was the case in which Howard Smith, the same congressman that attempted to stifle the bill in the Rules Committee, attempted to add an amendment strengthening the bill to include sex discrimination. He believed that such an amendment would be irresistible to vote for, but would eventually destroy the bill by making it too strong to be agreed upon either in the House or the Senate. He was right on one count, the amendment passed, and did so despite Manny Celler’s vehement opposition, who stated that “there are in the equality of sex that some people glibly assert…serious problems.”

Finally, on February 10th, the amendment process finished and Congress stopped working as a committee and began sitting in a normal session. Two formalities where congressmen could request a roll call vote were quickly dispensed with, and a vote on HR 7152 was finally held. It passed resoundingly, with a vote of 290-130.

The fate of HR 7152 in the House demonstrates the fact that often political motivations are just as important as the content of a bill in determining its passage. The give and take between McCulloch, Celler, and the presidency was necessary to obtain a bill supported by all sides. Only through that process was there a method whereby all could gain credit for their work without being punished for taking necessary actions.

While the process it took for HR 7152 to pass the House was complex, in the Senate it was much simpler. This did not make it any easier, though. A bill sent to the Senate will normally be introduced into a committee, as is done in the House. But the Senate Judiciary Committee, chaired by James Eastland (D-Miss.), was known as a graveyard for civil rights legislation. Anything that went in was never sent back out. To avoid this, Senate Majority Leader Michael Mansfield (D-Montana) motioned that the bill bypass committee, and be placed directly on the calendar. This issue, despite objection from southern Senator Richard Russell (D-Ga.) was agreed upon quickly with a vote of 54-37.

On Monday, March 9th, Mansfield planned to bring HR 7152 to the floor, but he did so knowing full well what would come next. In order to bring a bill to the floor without debate, the majority leader must motion to bring it to the floor within the first two hours. To prevent this, Russell had the clerk read the journal from the day before, which took up an hour, and then proposed an amendment to the journal, speaking about his amendment for another two hours. After Russell finally sat down, Mansfield then tried to bring HR 7152 to the floor by unanimous consent, but unsurprisingly an objection was raised, and so the motion was up for debate. So began a two week long filibuster that was only a prelude of what was to come. For hours on end southern senators would talk on the Senate floor, sometimes only vaguely referring to the motion at hand. Nevertheless, on March 26th, the Southerners finally allowed the motion to come to a vote, so that they might leave for Easter recess. The bill was finally sent to the floor by a vote of 67-17.

Mansfield made Hubert Humphrey (D-Minn.) floor manager, and on March 30th debate on HR 7152 finally began, and with it came the real filibuster. There are only two ways to fight a filibuster: The first is to wait it out. With a sufficiently small group a filibuster must eventually end as physical needs overtake any desire to prevent the legislation from passing. In this case, the southern coalition was large enough and vehement enough in its opposition to continue a filibuster indefinitely. The only other choice then was cloture, a rule by which debate would be stopped if two-thirds of senators, or 67, voted to end it. But since 1917 cloture had only succeeded five times. It had failed all eleven times it was invoked on civil rights legislation. Many senators believed the filibuster was a right, and didn’t want to weaken it in case they needed to use it in the future. So cloture would be difficult to obtain.

As Democratic leaders searched for the necessary votes, the filibuster continued. Whenever the number of senators seemed to fall below 51, a motion was made to check for a quorum, and while everyone was counted tired speakers had a chance to rest from their daylong speeches. For weeks the filibuster continued, and it seemed the only hope for cloture rested in the support of Minority Leader Everett Dirksen. Just as Bill McCulloch was needed to pull votes in the House, Dirksen was needed to get the 67 votes for cloture in the Senate. The problem was that at first glance Dirksen did not seem to be particularly enthusiastic for the bill. And so Hubert Humphrey would spend his afternoons frequently talking with Dirksen in an attempt to bring him over to his side. As the filibuster wound on, entering its fifth week, Dirksen began to see the necessity of voting for cloture. If not because he supported the bill, although he might have, than more because the Senate had other business to attend to, and he didn’t want to be in the situation where there was unfinished business after the Republican convention.

Dirksen began looking for a way to change the legislation so that conservative Republicans, who were not necessarily against civil rights but pro-states’ rights, would be able to accept it and agree to a vote for cloture. Privately he let Humphrey know that he was willing to negotiate, and they began to compromise. Every amendment posed by Dirksen, however, had to be approved by McCulloch in the House, who would refuse to back any changes that substantially weakened the bill, and so would, using his influence, vote down a compromised bill returned to the House. Dirksen finally reached a compromise by allowing for state and local enforcement of provisions of the civil rights act first. Only if such enforcement failed would the federal government get involved. In this was a compromise was reached whereby states maintained their power while at the same time maintaining the strength of the original bill. This agreement was not quickly made, however. Weeks went by as Dirksen haggled, and the filibuster went on.

Meanwhile, religious groups began taking an active roll in the passage of HR 7152. A 24-hour vigil was held at the Lincoln Memorial until the legislation was passed. Individual churches began letter writing campaigns, and some asked influential members to speak to Senators on the church’s behalf. Letters came in 30-1 asking that the bill be passed. These outpourings undoubtedly helped Dirksen get the required votes.

Finally, on June 8th, more than two months after debate began, cloture was finally invoked. But even then, under the rules each senator still has an hour to speak, and so debate continued. Not until June 19th did debate finally stop. This was the longest filibuster in history, doubling the previous record. Dirksen’s amendments were accepted, and HR 7152 finally passed the Senate 73-27.

The Senate demonstrates two paradoxical principles: A single member has extraordinary powers to block legislation, but at the same time methods exist to get around any blocks a Senator might place.

There was still one more important step before the bill became law. It had to go back to the House of Representatives for approval of Senate amendments. Normally a bill would be sent to a conference committee, composed of members of both the House and the Senate, but in this case such an outcome would be disastrous. A conference committee would include members of the Senate Judiciary Committee, which was avoided in the first place because of its posture against civil rights legislation. Even if a conference report was made, it could face another filibuster in the Senate.

To prevent this, Celler and McCulloch planned a motion to accept the amendments completely. While this method would avoid a conference committee, the motion would still have to be sent to the Rules Committee, where Chairman Smith could once again attempt to kill it. McCulloch considered bringing the bill up under “suspension of the rules,” as this would not require the motion to go through the Rules Committee. He eventually decided against it because he was not sure he could get a two-thirds vote in support of the bill, something required under suspension of the rules. So HR 7152 was sent to the Rules Committee, but just like the last time, Smith could not hold the bill because other members of the committee threatened to hold a meeting without him. So on June 30th Smith held hearings, still planning to extend them as long as he could, but a majority of the committee, without his consent, voted to end discussion that same day, and sent the motion to the floor with only one hour of debate. Two days later, on July 2nd, the hour was quickly finished, the motion voted on and approved 289-126. That night, at 6:45, Lyndon Johnson signed the bill that had come so far.

The Civil Rights Act of 1964 demonstrated that Congress can be a place of compromise and cooperation, as occurred in the end between Celler and McCulloch in the House, and Humphrey and Dirksen in the Senate. At the same time, it may be a place of battle, as individual congressmen do everything they can to sabotage a bill, as Howard Smith tried to do in the House, and as Southerners tried to do with their filibuster in the Senate. In the end though, a coalition of diverse groups won over a small faction that refused to negotiate. In this case, at least, cooperation won out over partisanship.


Sources:
All quotes except the last (and the bulk of information) taken from:
Charles and Barbara Whalen, The Longest Debate (Washington D.C., Seven Locks Press, 1985).
Last quote, beginning, "there are in the equality of sex..." taken from:
The Civil Rights Act of 1964 (Washington D.C., BNA Inc., 1964).

Giving credit where credit is due: this writeup was the result of a group effort between this noder (J. Kotecki) and two non-noders (C. Hiltrop and K. Livernois). It has been posted here with the expressed permission of all parties.

Abstract
This writeup analyzes the Civil Rights Act of 1964, placing particular emphasis on Title VII and the fact that it excludes members of minority groups that have to do with sexual orientation. The CRA prohibits discrimination in public facilities, in government, and in employment. The CRA encourages the desegregation of public schools, authorizes the U.S. Attorney General to file suits to force desegregation, and authorizes withdrawal of federal funds from programs that practice discrimination. Title VII outlaws discrimination in employment on the basis of race, national origin, sex or religion. It also prohibits retaliation against employees who oppose such unlawful discrimination. However, those who experience employment discrimination based on their sexual orientation have no recourse under current federal law.




Discrimination Based on Sexual Orientation
As Manifested in Title VII of the Civil Rights Act of 1964

In 1963, a Civil Rights bill was brought before Congress for the first time since 1870 (Simkin, 1997a). Its chief purpose was to protect black men from discrimination, a term which in this context refers to “treating one person unfairly over another according to factors unrelated to their ability or potential” (Legal Definitions, n.d.). In a speech televised live on June 11, 1963, President John F. Kennedy pointed out:

The Negro baby born in America today, regardless of the section of the nation in which he was born, has about one-half as much chance of completing high school as a white baby born in the same place on the same day; one third as much chance of completing college; one third as much chance of becoming a professional man; twice as much chance of becoming unemployed; about one-seventh as much chance of earning $10,000 a year; a life expectancy which is seven years shorter; and the prospects of earning only half as much.

(Simkin, 1997b)
Congress was still debating Kennedy’s Civil Rights bill when he was assassinated in November of that year. The new president, Lyndon Baines Johnson, took up the cause. The final House vote on the Senate version of the bill was 289 yeas and 126 nays, and President Lyndon Johnson signed the bill into law on July 3, 1964 (Wikipedia, 2004b).

The Civil Rights Act of 1964 (which will be referred to throughout this paper as the CRA) purported to prohibit discrimination in public facilities, in government, and in employment, but it had several loopholes. Title I barred unequal application of voter registration requirements—-but did not abolish literacy tests; Title II outlawed discrimination in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce-—but exempted private clubs without defining “private”; Title III encouraged the desegregation of public schools, and authorized the US Attorney General to file suits to force desegregation—-but did not authorize busing as a means to overcome segregation based on residence; Title IV authorized withdrawal of federal funds from programs that practice discrimination-—but did not require said withdrawal of funds; and Title VII, which will be the focus of this writeup, outlaws discrimination in employment in any business on the basis of race, national origin, sex or religion, and also prohibits retaliation against employees who oppose such unlawful discrimination—-but did not protect against employment discrimination on the basis of sexual orientation or gender identity (Wikipedia, 2004b). These loopholes are mute evidence of the U.S.’s conflicted attitude regarding the proper way for its minority populations—groups such as African Americans, Jews, Asian Americans, European immigrants, Hispanic Americans, and Native Americans/American Indians-—and its women to be treated by white males. This internal conflict has been present since the nation’s inception, and the struggle for legislative equality continues today in the current attempt to pass HR 3285 and S. 1705, identical bills titled “the Employment Non-Discrimination Act(Library of Congress, 2004). This act would extend the CRA’s Title VII protection to minority sexual orientations (Library of Congress).

Signed by representatives of the Thirteen Colonies in 1776, the Declaration of Independence was the very first legislative act of the nascent U.S., and it states that all men are created equal (Wikipedia, 2004f). However it was not until December of 1865, after the American Civil War had ended, that twenty-seven out of thirty-six states ratified the Thirteenth Constitutional Amendment in order to outlaw slavery, the most obvious form of legalized discrimination (Wikipedia, 2004e). Incredibly, the state of Mississippi did not ratify the Thirteenth Amendment until 1995 (Wikipedia)! The Reconstruction period of U.S. history saw two significant advances in civil rights legislation: The Civil Rights Act of 1866, which states that “all persons shall have the same rights…to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws,” and the Fourteenth Constitutional Amendment, which states that “All persons born or naturalized in the US…are citizens…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person the equal protection of the laws” (G. Todd Withy Law Offices, 2001, par. 3-4). Despite the existence of this federal legislation, the first of the state-level “Jim Crow” laws, so-called due to a minstrel’s parody of African American culture and designed to enforce and promote racial discrimination, was passed in 1888 in Louisiana, declaring that African Americans could not be seated with whites on railway cars (Barusch, 2002). The U.S. Supreme Court upheld this legislation with its decision in the case of Plessy vs. Ferguson, declaring that segregated facilities could be “separate but equal(Barusch, p. 313). Jim Crow laws soon became comprehensive, covering almost all aspects of life: barbershops, baseball (both professional and amateur!), bathing, billiard and pool rooms, boating, burial, busing, care for the blind, child custody, circuses, cohabitation, education, fishing, hospital entrances, housing, juvenile delinquent facilities, libraries, lunch counters, marriage, mental hospitals, militias, mining, nursing, parks, prison facilities, railroads, reform schools, restaurants, the sale of wine and beer, theaters, telephone booths, textbooks, toilet facilities, teaching, transportation, all were racially segregated by state legislation (Martin Luther King Jr. National Historic Site, 1998). It was especially important from the perspective of those who wanted to keep the races separate that educational facilities were segregated, and that interracial marriages were banned; these two types of legislation were passed in state after state.

With progress toward racial equality stymied by Jim Crow legislation, the next significant advance in civil rights was made on the basis of gender. The Nineteenth Amendment to the U.S. Constitution, ratified in 1920, states that “the rights of citizens…to vote shall not be denied or abridged…on account of sex” (G. Todd Withy Law Offices, 2001). Another advance towards gender equity came in 1963, when the Equal Pay Act prohibited sex-based pay differentials in jobs (G. Todd Withy Law Offices), but a little less than a decade before the Equal Pay Act became law, the Supreme Court made progress on the racial front by overturning Plessy vs. Ferguson in its now-famous 1954 ruling on Brown vs. Topeka Board of Education (Tice & Perkins, 2002). In this ruling, the Supreme Court admitted that racially-segregated facilities were inherently unequal, and announced that school systems could no longer be separated on the basis of race because the message to black children would be that the whites did not want them in their schools (Tice & Perkins). The Court understood that isolation would generate feelings of inferiority. Unfortunately, this ruling, which reversed the tide of Jim Crow, resulted in an angry backlash from white supremacist groups such as the Ku Klux Klan. It also proved difficult for elected police officials and justice officials to enforce the laws. Ten years after Brown v. Topeka Board of Education, only 2% of the segregated schools had been integrated; fifteen years after the ruling, 80% of black students were still in separate facilities (Tice & Perkins).

The Ku Klux Klan was not the only group angered by civil rights legislation. Shortly after the Equal Pay Act came the CRA. However, certain leaders of infuriated groups of African Americans (finally organized after decades of Jim Crow), felt that white people had no intention of treating blacks as equals, and did not believe that the CRA went far enough in promoting their rights (Tice & Perkins, 2002). Unlike the respected force of nature named Martin Luther King, Jr., these leaders denounced non-violent means of protesting. Stokely Carmichael was one of those leaders; he coined the phrase “black power”. Malcolm X is arguably the most famous of the civil rights leaders who advocated violence. X’s followers called him “Our Black Shining Prince”, and eagerly joined his Black Panther 10-point party program (Tice & Perkins).

When Title VII of the CRA is analyzed from an economic perspective, it becomes clear that it was intended to redistribute social benefits and increase opportunity for certain segments of the U.S. population. Therefore, its basis of allocation is categorical in nature: members of racial, ethnic, and religious minorities, as well as women, as long as they were citizens, could now theoretically reap the benefits of non-discrimination previously enjoyed by majority groups and males. To use a metaphor, the CRA does not add to the pie, it changes the size of the slices. The groups that benefit from this act do not receive a direct financial provision, and their benefits do not come in either in-cash or in-kind forms. The Equal Employment Opportunity Commission (EEOC), established in Title VII, interprets and enforces civil rights legislation at a federal level (Wikipedia, 2004b). Additional civil rights legislation created at the state level is enforced by state agencies. For example, the Illinois Department of Human Rights administers the Illinois Human Rights Act, which prohibits discrimination because of race, national origin, sex, religion, ancestry, citizenship status (with regard to employment), age 40 and over, marital status, physical or mental handicap, military service or unfavorable military discharge (Illinois Department of Human Rights, 2003). Note that sexual orientation minority groups are not protected against discrimination in the state of Illinois at this time. Federal taxes support the EEOC, and state taxes support agencies such as the IDHR. The federal government’s 2004 budget proposal included an allotment of $335 million for the EEOC (Gruber, 2003, par. 12). The State of Illinois' fiscal year 2005 appropriations, by major purpose percentage of total funds, allotted the IDHR 17.2% of a $43.5 billion budget, which was $7.5 billion dollars (State of Illinois, n.d.).

In addition to the budgets of the EEOC and state agencies, another cost incurred by the CRA is the funds that have been spent by the business organizations in order to ensure they comply with Title VII. Since it would cost the employer approximately $80,000 to handle an EEOC complaint up to the point of but not including courtroom/settlement costs (Penn-Nabrit, 2003), it is usually cost-effective for the company to establish a policy that complies with Title VII and to train its employees appropriately. Training, specifically in the form of diversity training and harassment-free prevention training, are provided to employees at a cost to the employer. This cost can be as little as $20-30, depending on what type of training program is used (PrimeLearning.com, 2004). While civil rights legislation comes with a clear price tag, discrimination incurs more subtle costs, such as when companies lose productivity from employees who feel they are discriminated against (“Please Explain”, n.d.). “Staff who believe or perceive they are being harassed or discriminated against in the workplace become dissatisfied and unhappy, which may ultimately lead to resignations and/or formal complaints” (“Please Explain”, par. 3).

The phrase ‘affirmative action’ was coined by President Kennedy’s administration, “in a ruling directing firms with federal contracts to take ‘positive steps’ to have a racially representative workforce” (Tice & Perkins, 2002, p. 237), but was not clearly defined in that ruling. In the decades that have passed since that ruling, affirmative action, also called “positive discrimination” or “employment equity”, has come to refer to “conciously choosing people who have traditionally been discriminated against. This consists of preferential access to education, employment, health care, or social welfare(Wikipedia, 2004a). Affirmative action is an extremely controversial topic. Its proponents argue that affirmative action is the best way to correct a history of discrimination against minority groups and women, and that it redresses an otherwise unfair balance of historical wrongs; its opponents believe that affirmative action denies opportunities to qualified individuals who happen to have been born male or who are part of majority groups (Wikipedia). In addition to this ‘reverse discrimination’ argument, some claim that while affirmative action may have been needed in the 1960s, U.S. society has progressed to the point that it is no longer necessary, and many say that affirmative action sends a message to minorities that they are not capable enough to be considered on their own merits (Wikipedia). It is the EEOC that currently enforces U.S. legislation regarding affirmative action, including the establishing of quotas (Tice & Perkins, 2002). Quotas have consistently been the most controversial results of civil rights legislation:

The use of quotas means that a certain percentage of all new hires must be a member of some group, no matter how unqualified. Quotas were sometimes ordered by courts in the 1970's and 80's to force uncooperative institutions in integrate. However, outside of such court orders, quotas are usually considered illegal discrimination.

The real debate these days is over a form of affirmative action called “racial preferences.” This is when a school or business gives a preference to a certain minority group by giving them extra points in a scoring system, requiring a lower score for minorities, or some other mechanism.

Critics of racial preferences often argue that there is no practical difference between quotas and preferences, since all a business has to do is adjust the amount of preference given to ensure the exact percentage of minority acceptances that it wants. However, the Supreme Court held just this term that such racial preferences are permissible in some cases, even though quotas are not.

(Troy, 2003, par. 5-7)

While it is the EEOC’s job to enforce U.S. policy regarding affirmative action, the EEOC is only one small part of the divisions of the federal government whose business concerns civil rights. A perhaps unexpected result of the U.S. government’s system of checks and balances is that its judicial branch, represented at the federal level by the Supreme Court, plays a crucial role in interpreting the extent of civil rights. The material that has already been presented in this writeup regarding Plessy v. Ferguson and Brown vs. Topeka Board of Education shows with striking clarity how a single Supreme Court ruling can change the very nature of a right throughout the country. The Supreme Court began mandating and supervising school desegregation programs after the passage of the CRA, and remain crucial in performing this role (Holladay, 2004). It is fortunate for U.S. citizens that, in addition to the EEOC and the Supreme Court, non-government agencies also ensure the administration of civil rights legislation such as the CRA. There are many special interest groups that provide a variety of services to ensure that citizens enjoy the benefits of these laws. Examples of such special interest groups include: the National Association for the Advancement of Colored People, the National Organization for Women, the Society for Human Resource Management, and the American Civil Liberties Union (Auburn University, 2003).

U.S. civil rights legislation has been revised several times in the years that have passed since the landmark CRA. In 1967, the Age Discrimination Employment Act (ADEA) was passed, prohibiting discrimination against 40-65 year-olds, and in 1986 it was amended (G. Todd Withy Law Offices, 2001). Title I of the 1990 Americans with Disabilities Act (ADA) prohibits discrimination by employers on the basis of disability. The Civil Rights Act of 1991 added provisions to Title VII of the CRA in order to prohibit sexual harassment (G. Todd Withy Law Offices). These two acts were intended to show the nation’s commitment to protecting individuals who are not white males under the age of 40. However, gays and lesbians remain unprotected, and discrimination against categories of U.S. citizens that are theoretically protected by the CRA, such as racial and religious minorities, immigrants, and women, continues. Activists who currently lobby for gender equity point to Report 972 of the U.S. Department of Labor’s Bureau of Labor Statistics, released in September of 2003, which states that despite the existence of the Equal Pay Act, women still only earn 79 cents for every dollar a man earns. The easiest way to test for discriminatory practices is to use paired testing, in which “two individuals are matched for all relevant characteristics other than the one that is expected to lead to discrimination. The testers apply for a job, an apartment or some other good and the outcomes and treatment they receive are closely monitored” (Fix & Turner, 1999, par. 5). Even without the use of paired testing, statistics collected in 1999 indicated that the hourly earnings of black men were 65 cents on the dollar for white men’s earnings; black men paid $1000 more for the same new car as the one bought by a white man; deep disparities persisted in the receipt of state and local employment contracts for all minority groups; and schools and neighborhoods were becoming more, not less, segregated (Fix & Turner, par. 2). Further proof of the continued existence of discrimination in the workplace comes from the reports of the EEOC: 364 suits filed in 2002, of which 332 were determined to have merit and 247 were based on workplace discrimination (U.S. Equal Employment Opportunity Commission, 2004, par. 2).

Given that so many members of groups that are supposed to be protected by the CRA experience workplace discrimination, it is not surprising that gays and lesbians, who have no protection under Title VII, experience ferocious discrimination at their places of employment:

54 percent of respondents in a 2001 statewide survey of lesbian, gay and bisexual New Yorkers had experienced discrimination in employment, housing, or public accommodation since 1996, with eight percent reporting that they were fired specifically because of their sexual orientation; 27 percent also reported being called names such as “faggot” and “dyke” in the workplace…

33 percent of a national sample of members of the National Gay and Lesbian Task Force, the National Latino Lesbian, Gay, Bisexual and Transgender Organization (LLEGO) and the National Black Lesbian and Gay Leadership Forum reported employment discrimination.

(National Gay and Lesbian Task Force, 2004, par. 5-7)

Certain areas of the U.S. suffer more of the negative consequences of discrimination against gays and lesbians than other areas do. While same-sex couples were reported in 99% of U.S. counties in 2000, the distribution of gay and lesbian families is not uniform (Gates & Ost, 2004). Currently, the ten states with the most same-sex couple households are California, New York, Texas, Florida, Illinois, Pennsylvania, Georgia, Ohio, Massachusetts and New Jersey (Gates & Ost). Research findings regarding what percentage of the population is made up by minority sexual orientations varies with differing methodologies and selection criteria. Most of these statistical findings are in the range of two and eight tenths to nine percent of males, and one to five percent of females for the United States; the figure can be as high as twelve percent for some large cities and as low as one percent for rural areas (Wikipedia, 2004d). Almost all studies have found that homosexual males occur roughly at twice the rate of homosexual females (Varnell, 2003). Currently, the question of whether or not homosexuality is a choice remains a hot topic for the U.S.’s society. Some believe that homosexuals choose to be the way they are so they are not entitled to have their civil rights protected by legislation (Sullivan, n.d.). It seems worth noting at this point that a person’s religion is also a choice, and religion was included as an invalid basis for discrimination in the CRA.

Changes in the way gays and lesbians have been portrayed over time has helped to sway public opinion on homosexuality. Today’s teens have “had a dramatically different exposure to the gay, lesbian, bisexual, and questioning (GLBQ) community than any other, largely due to the emergence of widespread media representation over the past decade” (Bialek, 2004, par. 1). This exposure has put a face to the issue of homosexuality, and incremental change in attitudes towards homosexuality has been the result. Even a strongly leftist organization such as the American Civil Liberties Union (ACLU) felt comfortable with turning its back on gays and lesbians during the 1950’s, but after several United States Supreme Court rulings affirmed privacy in marriage, the ACLU’s National Board of Directors changed its policy (Tice & Perkins, 2002). Now many companies have come to recognize that there are considerable benefits in adopting employment policies based on principles of equality, including the equal treatment of members of minority sexual orientation groups. Tackling discrimination helps to attract, motivate and retain employees. It helps employers make the best use of skills and experience and can lead to a more diverse workforce, new ideas, access to wider markets and a better image (EEO Trust, n.d.). Also, as was touched on earlier, discriminating against employees increases a variety of costs: loss of morale, increased absenteeism, loss of productivity, costs of legal actions and settlements, vicarious liability, high staff turnover, lack of loyalty, poor individual performance, mistrust and division, loss of company reputation, bad publicity, and increased workplace health and safety issues can all result from discrimination (Education Queensland, n.d.). Providing protection to lesbians and gays decreases a company’s potential for increased unemployment costs and saves substantial turnover costs. The average cost for employee turnover, which includes recruitment costs, training costs, lost productivity costs and new hire costs, based on a salary of $50,00, is $75,000 (Bliss, n.d., par. 4).

Many individuals and organizations publicly support gay and lesbian rights. In 1924, the Society for Human Rights in Chicago became the country’s first known gay rights organization (Infoplease, 2004). In 195l, Harry Hay founded the Mattachine Society, the first national gay rights organization, and in 1956, a national lesbian organization called the Daughters of Bilitis was founded (Infoplease). Lambda Legal is a national organization that currently works to achieve “full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people and those with HIV through impact litigation, education and public policy work” (Lambda Legal, 2004, par. 1). Founded in 1978, Gay and Lesbian Advocates and Defenders (GLAD) is New England’s leading legal rights organization dedicated to ending discrimination based on sexual orientation, HIV status and gender identity and expression, which provides litigation, advocacy, and educational work (Williams, n.d.). Other organizations that actively pursue civil rights for gays and lesbians include the Gay Activists Alliance and the National Gay and Lesbian Task Force (Haider-Markel, 2004).

The work of these individuals and organizations has consistently been countered by other individuals and other organizations that passionately oppose tolerance of homosexual lifestyles. The Moral Majority, a group of conservative Christian political action committees, dissolved in 1989, but its successor, the Christian Coalition, remains active and remains vociferous in its disapproval of gays and lesbians (Wikipedia, 2004c). The U.S. military began to practice discrimination against homosexuals in 1778 with the dismissal of Lt. Gotthold Frederick Enslin, and in the mid-1990s entered the mire of President Willam Jefferson Clinton’s ‘don’t ask, don’t tell, don’t pursue’ policy, from which it has yet to emerge (GLINN, 2005). The Boy Scouts of America have consistently banned open, avowed homosexuals from adult leadership positions within the organization, stating that homosexuality is inconsistent with their values (Barnett, n.d.).

There are several pending federal bills and state bills focusing on preventing discrimination based on sexual orientation. One of these bills is HR 3285, the Employment Non-Discrimination Act (ENDA), designed to prohibit discrimination on the basis of sexual orientation and therefore ensure fairness in the workplace for Americans who are currently denied equal protection under the law (Library of Congress, 2004). ENDA does not create ‘special rights’; it explicitly prohibits awarding preferential treatment to or creating quotas for gays and lesbians, exempts small businesses, religious organizations and the military from its requirements, and remains silent on the question of whether employers should offer health insurance benefits to the same-sex partners of employees (Library of Congress). ENDA has received widespread bipartisan support, which may only be possible because it does not deal with the question of gender identity, a glaring oversight in the eyes of progressive groups such as the Human Rights Campaign (Brune, 2004). The last major action taken towards ENDA occurred on the 30th of January of this year, when it was referred to a subcommittee on employer/employee relations (Library of Congress). The lack of federal law protecting the interests of minority sexual orientation groups could be mitigated by legislation at the state level. Unfortunately, there are only ten states with legislation on the books that prevents discrimination based on sexual orientation: California, Connecticut, Hawaii, Massachusetts, Minnesota, New Hampshire, New Jersey, Rhode Island, Vermont, Wisconsin, and the District of Columbia (American Civil Liberties Union, 1998). Throughout the rest of the United States, employees fired for being gay, or even for merely being suspected of being gay, have no legal recourse (unless they are fortunate enough to work in a city or county that has its own local anti-discrimination ordinance).

Fortunately, despite the lack of workplace discrimination reform on their behalf, other legislative acts have been created to help homosexuals. One kind that has created some controversy is hate crime legislation. “The assault, robbery, crucifixion, and death on 1998-OCT-12 of Matthew Shepard, a gay University of Wyoming student, breathed new life in to the call for an upgrade to the Federal hate crime law” (Robinson, 2003, par. 1). Hate crime legislation is necessary for the health and well being of individuals who have been victimized due to their sexual orientation, because they suffer more serious psychological effects from hate crimes than they do from other kinds of criminal injury (American Psychological Association, 1998). The association the hate crime causes them to form between vulnerability and sexual orientation is particularly harmful, because sexual identity is such an important part of one's self-concept (American Psychological Association).

For many it is difficult to understand why social welfare benefits regarding employment were not extended to members of minority sexual orientation groups through the CRA or subsequent federal legislation, when members of those groups are allowed to access social welfare benefits in respect to enfranchisement, education, and public facilities. Whether homosexuality exists due to nature or nurture is irrelevant; gays and lesbians engage in loving, kind relationships that exist between consensual adults. Homosexuality should not be considered lewd perversion. In fact, a 1998 study conducted by the American Medical Association concluded that 90 percent of pedophiles are male and 95 percent of those males are heterosexual (Lopata, 2004, par. 6). The bottom line is that decades after the passage of the CRA, it can still be said that

qualified hard-working Americans are denied job opportunities, fired or otherwise discriminated against for reasons that have nothing to do with their performance and abilities. Employment discrimination based on sexual orientation, whether such orientation is real or perceived, effectively denies qualified individuals equality and opportunity in the workplace. Those who experience this form of discrimination have no recourse under current federal law or under the Constitution as the courts have interpreted them.

Employment discrimination strikes at a fundamental American value – the right of each individual to do his or her job and contribute to society without facing unfair discrimination. Fairness in the workplace has been recognized as a fundamental right protected under federal law. Currently, federal law provides basic legal protection against employment discrimination on the basis of race, gender, religion, national origin, or disability, but not sexual orientation or gender identity and gender expression.

(UUAC, 2003, par. 1-2)
According to a 2001 Gallup study, 85 percent of Americans support equal opportunity for gays and lesbians in the workplace (Human Rights Campaign, 2004, par. 2). The passing of ENDA would ensure their protection from employment discrimination. This would be a step in the right direction, in keeping with the original spirit of the CRA.




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