The Unfinished Mission of Title VII: Black Parity in the American Workforce, 23 J. Gender, Race & Just. 139 (2020).
Abstract
The construct of Title VII as a law primarily redressing intentional discrimination only first became established with the Supreme Court’s 1977 decision, International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). But before that, both in its history and subsequent judicial construction, Title VII was conceived no less as economic legislation, meant to remedy black unemployment and poverty. In this objective, Title VII in its early years (1965–76) proved a robust and adaptive tool, with courts making wholesale changes to the workplace to promote employment opportunities for black workers. Employers were obliged to prove a strict “business necessity” to justify barriers to black hiring and advancement, even for the most sacred of practices, seniority. As late as 1975, the Supreme Court observed that “Title VII is not concerned with the employer’s ‘good intent or absence of discriminatory intent.’” Albemarle Paper v. Moody, 422 U.S. 405, 422–23 (1975) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971)). Yet, the economic goal of black parity was eclipsed by the advent of Teamsters, which bisected disparate “treatment” and “impact” into separate theories. The Title VII statute remains intact, though, and the goal of black parity in employment—no less urgent today than it was in 1964—stands ready to be reactivated by a new generation of scholars, lawyers, and judges.