Friday, May 27, 2011

Engstrom on the "Lost Origins" of U.S. Fair Employment Law

"The Lost Origins of American Fair Employment Law: Regulatory Choice and the Making of Modern Civil Rights, 1943-1972, published by David Freeman Engstrom (Stanford--Law) in the current volume of the Stanford Law Review (Volume 63, no. 5, May 2011), may be of interest to readers of this blog. The abstract of the article follows, and the full article is available here.

By the time Congress enacted Title VII of the Civil Rights Act of 1964, roughly two dozen states had already passed fully enforceable employment discrimination laws and engaged in nearly two decades worth of enforcement efforts. But this early state-level scheme was very different from what most lawyers know as Title VII. Title VII vests primary enforcement authority in the federal courts. By contrast, beginning in the mid-1940s, civil rights groups championed, and states enacted, employment discrimination laws that vested exclusive enforcement authority in administrative agencies. In this Article, I ask why civil rights groups in the 1940s preferred an administrative approach to regulating job discrimination over available (and potentially more effective) court- and litigation-centered approaches. Drawing on extensive original archival research, I trace the agency choice to a series of strategic conflicts among civil rights groups about how best to attack job discrimination as well as a troubled but necessary alliance with organized labor. Understanding the social movement and coalition dynamics at work in the early drive for fair employment, I argue, has important implications for how we think about the legal strategies civil rights groups pursued before and after Brown v. Board of Education, the form Title VII ultimately took, the subsequent emergence of “affirmative action” policies, and the broader postwar move away from administrative regulation and toward private litigation as a regulatory tool.