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The Political Development of Job Discrimination Litigation, 1963–1976

Published online by Cambridge University Press:  19 March 2009

Sean Farhang
Sean Farhang
Affiliation:
University of California, Berkeley
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Abstract

In lobbying for the job discrimination provisions of the Civil Rights Act (CRA) of 1964, liberal civil rights advocates wanted an administrative job discrimination enforcement regime modeled on the National Labor Relations Board (NLRB), with no private lawsuits. Pivotal conservative Republicans, empowered by a divided Democratic Party and the filibuster in the Senate, defeated an administrative framework and provided instead for private lawsuits with incentives for enforcement, including attorney's fees for winning plaintiffs. They were motivated by native suspicion toward bureaucratic regulation of business in general, as well as fear that they would not be able to control an NLRB-style civil rights agency in the hands of their ideological adversaries. In the political environment of 1963–64, some meaningful enforcement provisions were necessary, and to conservative Republicans private litigation was preferable to public bureaucracy.

This choice had important self-reinforcing policy feedback effects. Civil rights advocates were initially optimistic about agency implementation and skeptical about the efficacy of private litigation to enforce Title VII, even with attorney's fees for winning plaintiffs. In the late 1960s and early 1970s, however, civil rights advocates observed an agency lacking the material resources and political will and commitment to carry out its mission. At the same time, they observed levels of private enforcement that far exceeded their expectations, as well as courts inclined toward broadly proplaintiff interpretations of Title VII. The CRA of 1964's attorney's fees provisions also had the effect of contributing funds to civil rights groups that prosecuted lawsuits and of conjuring into being a private, for-profit bar to litigate civil rights claims in general, and job discrimination claims in particular. These developments drove a transformation in the enforcement preferences of civil rights groups toward private litigation, weakening their historic support for administrative implementation. Working together with the burgeoning for-profit civil rights bar, they mobilized to expand the fee-shifting provisions of the CRA of 1964 across the entire field of civil rights, which they accomplished by successfully lobbying for enactment of the Civil Rights Attorney's Fees Awards Act of 1976. Thus was created the modern civil rights enforcement framework.

Type
Research Article
Information
Studies in American Political Development , Volume 23 , Issue 1 , April 2009 , pp. 23 - 60
Copyright
Copyright © Cambridge University Press 2009

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102. Stewart, “The Civil Rights Act of 1964: Tactics I,” 245–59. See also “Dirksen Influence the Key to Successful Cloture Vote,” Congressional Quarterly Weekly 15 May 1964, 947–50.

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104. Graham, The Civil Rights Era, 146. See also Stein, Running Steel, Running America, 85.

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106. 78 Stat. 261, § 707(a).

107. 78 Stat. 260, § 706(e); Stewart, “The Civil Rights Act of 1964: Tactics I,” 252.

108. John G. Stewart, legislative assistant to Hubert Humphrey in 1963-64, interview with the author, 29 December 2008.

109. Dirksen introduced omnibus amendments to the CRA of 1964 twice. He did so first on 26 May 1964, Congressional Record, 88th Cong., 2nd sess., 26 May1964, 11926–11935 (the Title VII provisions are at 11930–11934), and a second time, with further revisions, on 10 June 1964, Congressional Record, 88th Cong., 2nd sess., 10 June 1964, 13310–19 (the Title VII provisions are at 13314–13318). The proposed Title VII amendments were the same in both versions. The private right of action appears at Congressional Record, 88th Cong., 2nd sess., 26 May 1964, 11932–11933, §706(e), and Congressional Record, 88th Cong., 2nd sess., 10 June 1964, 13316, §706(e).

110. Congressional Record, 88th Cong., 2nd sess., 26 May 1964, 11932–11933, § 706(e) and (k), and Congressional Record, 88th Cong., 2nd sess., 10 June 1964, 13316, § 706(e) and (k). The precise language of the fee shift was that fees may be awarded to “prevailing parties.” In Newman v. Piggy Park Enters, Inc., 390 U.S. 400 (1968), the Supreme Court held that prevailing plaintiffs could recover fees under this language as a matter of course but that prevailing defendants could do so only in extraordinary circumstances. As discussed below, this reading of the CRA of 1964's fee shift is consistent with legislative intent.

111. 78 Stat. 260–61, § 706(e) and (k).

112. See, e.g., Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981); U. S. ex rel. Gardner v. Madden, 352 F. 2d 792 (9th Cir. 1965).

113. O'Connor and Epstein, “Bridging the Gap between Congress and the Supreme Court.”

114. The Civil Rights Act of 1870, also known as the Fore Act 1870, created voting rights protections aimed at combating terrorism orchestrated by the Ku Klux Klan against black voters in the Reconstruction South, where states had proved unwilling or unable to control widespread violence against blacks. The statute's voting rights protections were enforceable through civil actions for monetary damages, along with attorney's fees for prevailing plaintiffs. 16 Stat. 140–41, §§ 2–4. None of the other Reconstruction civil rights laws contained a plaintiffs' fee-shifting provision. Most Reconstruction legislation governing voting rights, including the voting provisions of the CRA 1870, were repealed in 1894 after Democrats retook control of Congress. Greenberg, Race Relations and American Law, 135; Schwartz, Bernard, Statutory History of the United States, Civil Rights (New York: Chelsea House Publishers, 1970), Part 1, 445Google Scholar. Fee shifting was also employed, for example, in such major legislation as the Interstate Commerce Act of 1887, the Sherman Antitrust Act of 1890, the Securities Exchange Act of 1934, and the Fair Labor Standards Act of 1938. It was hardly a new idea in 1964.

115. 78 Stat 261.

116. O'Connor and Epstein, “Bridging the Gap between Congress and the Supreme Court,” 239–40; H.R. 7152, § 204(b), 88th Cong., 1st sess., 1963, reprinted in Hearings on Miscellaneous Proposals Regarding the Civil Rights of Persons Within the Jurisdiction of the United States Before Subcommittee No. 5 of the House Committee on the Judiciary, 88th Cong., 1st sess., 1963, Serial No. 4, Part I, 653.

117. Jack Greenberg, correspondence with the author, 22 August 2007.

118. Abernathy, Charles F., Cases & Materials on Civil Rights & Constitutional Litigation, 4th ed. (Saint Paul: West Law School, 2006)Google Scholar.

119. Sovern, Legal Restraints on Racial Discrimination in Employment, 79–80; Greenberg, Race Relations and American Law, 16–17, 22, 100–114, 138, 270–83; Walker, “Title VII,” 501–02; Watson, Lion in the Lobby, 362–63.

120. David Filvaroff, special assistant in the Department of Justice in 1963-64, correspondence with author, 25 November 2008.

121. Raymond Wolfinger, an aid to Senator Hubert Humphrey in 1963-64, interview with author, 12 November 2008; John G. Stewart, legislative assistant to Hubert Humphrey in 1963-64, interview with author, 29 December 2008. Wolfinger reports that Hubert Humphrey was an open conduit of communication between civil rights groups and Justice Department lawyers. According to Stewart, these were largely the same Justice Department lawyers that had drafted the original version of the Kennedy administration's bill, which contained a public accommodations title with a private right of action and fee recovery for successful plaintiffs. See H.R. 7152, § 204(b), 88th Cong., 1st sess., 1963, reprinted in Hearings on Miscellaneous Proposals Regarding the Civil Rights of Persons Within the Jurisdiction of the United States Before Subcommittee No. 5 of the House Committee on the Judiciary, 88th Cong., 1st sess., 1963, Serial No. 4, Part I, 653.

122. John G. Stewart, legislative assistant to Hubert Humphrey in 1963–64, interview with author, 29 December 2008.

123. Whalen and Whalen, The Longest Debate, 167–68; Loevy, To End All Segregation, 227–30; Watson, Lion in the Lobby, 598.

124. Watson, Lion in the Lobby, passim.

125. Watson, Lion in the Lobby, 606, and ch. 18 generally; Interview of Raymond Wolfinger, an aid to Senator Hubert Humphrey in 1963–64, 12/11/08.

126. Congressional Record, 88th Cong., 2nd sess., 4 June 1964, 12722.

127. Congressional Record, 88th Cong., 2nd sess., 4 June 1964, 12724.

128. Congressional Record, 88th Cong., 2nd sess., 4 June 1964, 13839.

129. Congressional Record, 88th Cong., 2nd sess., 26 May 1964, 11930–11934, § 706(e) (Title VII as introduced by Dirksen the first time); Congressional Record, 88th Cong., 2nd sess., 10 June 1964, 13314–13318, § 706(e) (Title VII as introduced by Dirksen the second time); 78 Stat. at 260, § 706(e) (Title VII as passed); Graham, The Civil Rights Era, 146.

130. Equal Employment Opportunity Commission, Legislative History of Titles VII and XI of Civil Rights Act of 1964, 1011.

131. Congressional Record, 88th Cong., 2nd sess., 26 May 1964, 11930–11934, § 706(b) (Title VII as introduced by Dirksen the first time); Congressional Record, 88th Cong., 2nd sess., 10 June 1964,. 13314–13318, § 706(b) (Title VII as introduced by Dirksen the second time); 78 Stat. at 259–60, § 706(b) (Title VII as passed); Rodriguez and Weingast, “The Positive Political Theory of Legislative History,” 1492.

132. Vaas, “Title VII: Legislative History,” 454. See also 437.

133. Walker, “Title VII,” 495–524, 506. See also Comment, “Enforcement of Fair Employment Under the Civil Rights Act of 1964,” 454, 467.

134. Congressional Record, 88th Cong., 2nd sess., 10 June 1964, 12722.

135. Congressional Record, 88th Cong., 2nd sess., 17 June 1964, 14188.

136. Congressional Record, 88th Cong., 2nd sess., 17 June 1964, 14188.

137. Congressional Record, 88th Cong., 2nd sess., 16 June 1964, 13878.

138. Congressional Record, 88th Cong., 2nd sess., 16 June 1964, 13879 (ICPSR Roll Call Number 366).

139. Congressional Record, 88th Cong., 2nd sess., 17 June 1964, 14201, 14213–14.

140. Congressional Record, 88th Cong., 2nd sess., 17 June 1964, 14214.

141. Congressional Record, 88th Cong., 2nd sess., 17 June 1964, 14213.

142. Congressional Record, 88th Cong., 2nd sess., 17 June 1964, 14214 (ICPSR Roll Call No. 406).

143. Congressional Record, 88th Cong., 2nd sess., 17 June 1964, 14182 (ICPSR Roll Call No. 396). Southerners had consistently advocated for criminal rather than civil proceedings in the civil rights context on the expectation that the higher burden of proof, coupled with trial by all-white southern juries, would make convictions all but impossible. Greenberg, Race Relations and American Law, 15; Watson, Lion in the Lobby, 365.

144. Congressional Record, 88th Cong., 2nd sess., 17 June 1964, 14196 (ICPSR Roll Call No. 401).

145. Congressional Record, 88th Cong., 2nd sess., 17 June 1964, 14201 (ICPSR Roll Call No. 405).

146. Congressional Record, 88th Cong., 2nd sess., 12 June 1964, 13647–48 (ICPSR Roll Call No. 330). As with the same amendment offered with respect to Title VII, Thurmond proposed, as an alternative to civil liability, the use of ordinary criminal process with associated jury trials and proof beyond a reasonable doubt.

147. Congressional Record, 88th Cong., 2nd sess., 16 June 1964, 13934 (ICPSR Roll Call No. 383).

148. Congressional Record, 88th Cong., 2nd sess., 16 June 1964, 13904–05 (ICPSR Roll Call No. 371).

149. Congressional Record, 88th Cong., 2nd sess., 12 June 1964, 13669 (ICPSR Roll Call No. 337).

150. Congressional Record, 88th Cong., 2nd sess., 15 June 1964, 13839–40 (ICPSR Roll Call No. 361).

151. Berg, Richard, “Equal Employment Opportunity Under the Civil Rights Act of 1964,” Brooklyn Law Review 31 (1964): 96–97Google Scholar; Comment, “Enforcement of Fair Employment Under the Civil Rights Act of 1964,” 430; Graham, The Civil Rights Era, 189–90; Skrentny, The Ironies of Affirmative Action, 121–22; Stewart, “The Civil Rights Act of 1964: Tactics I,” 249–52.

152. Berg, “Equal Employment Opportunity Under the Civil Rights Act of 1964,” 96–97.

153. Stein, Running Steel, Running America, 85.

154. Sovern, Legal Restraints on Racial Discrimination in Employment, 79.

155. “Intensive Lobbying Marked House Civil Rights Debate.” Congressional Quarterly Weekly 21 February 1964, 364–66.

156. Hearings on Miscellaneous Civil Rights Legislation Before Subcommittee No. 5 of the House Judiciary Committee, 88th Cong., 1st sess., 1963.

157. Hearings on Equal Employment Opportunity Enforcement Act (S. 2453) Before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 91st Cong., 1st sess., 1969 (hereinafter Senate Hearings on S. 2453), 50 (testimony of William Brown, chairman of the EEOC); Graham, The Civil Rights Era, 190, 203, 235–36, 239, 422.

158. James P. Gannon, “Uphill Bias Fight: After Faltering Start, Agency Readies Attack On Job Discrimination,” Wall Street Journal, 12 April 1967, 1.

159. House Report No. 238, 92d Cong., 1st sess, 1972 (“Instead of cooperating with the EEOC to resolve charges against them, employers ignored the conciliation process and relied, often successfully, on the assumption that aggrieved employees would fail to litigate their claims independently.”); Graham, The Civil Rights Era, 235; 422–23; Chen, The Fifth Freedom, ch. 5.

160. Gannon, “Uphill Bias Fight,” 1.

161. Nathan, Richard P., Jobs and Civil Rights: The Role of the Federal Government in Promoting Equal Opportunity in Employment and Training (Washington: United States Government Printing Office, 1969), 76Google Scholar.

162. Graham, The Civil Rights Era, 236–37, 422.

163. Nathan, Jobs and Civil Rights, 74–75.

164. Senate Hearings on S. 2453, 40.

165. Senate Hearings on S. 2453, 43 (statement of Senator Ralph Yarborough); 60 (statement of Clifford Alexander, member and former chairman of the EEOC); 66 (statement of Wendell Freeland, member of the board of trustees of the National Urban League); Graham, The Civil Rights Era, 424; Nathan, Jobs and Civil Rights, 47–50, 75; Sovern, Legal Restraints on Racial Discrimination in Employment, 79; Chen, The Fifth Freedom, ch. 5.

166. Sape and Hart, “Title VII Reconsidered,” 830–31, 835–41; Chen, The Fifth Freedom, ch. 5.

167. Sape and Hart, “Title VII Reconsidered,” 830–35.

168. 86 Stat. 106–07, §706(f)(1), and §707(c)–(e).

169. Sape and Hart, “Title VII Reconsidered,” 841–45; Chen, The Fifth Freedom, ch. 5.

170. Senate Hearings on S. 2453, 72 (statement of Jack Greenberg, director-counsel, NAACP Legal Defense and Education Fund); Hill, “Lichtenstein's Fictions,” 91–92; Sape and Hart, “Title VII Reconsidered,” 832.

171. Hill, “Lichtenstein's Fictions,” 91–92.

172. Hill, “Lichtenstein's Fictions,” 92.

173. Congressional Record, 90th Cong., 1st sess., 20 February 1967, 3949–52.

174. Hill, “Lichtenstein's Fictions,” 91–92.

175. See, e.g., Senate Hearings on S. 2453, 72 (statement of Jack Greenberg, director-counsel, NAACP Legal Defense and Education Fund), 75 (statement of Joseph Rauh, general counsel, Leadership Conference on Civil Rights); House Report No. 238, 92nd Cong., 1st sess., 2 June 1971 (hereinafter House Report No. 238), 11–13.

176. Pierson, Paul, Dismantling the Welfare State? Reagan, Thatcher and the Politics of Retrenchment (Cambridge: Cambridge University Press, 1994), 41–42Google Scholar; Helco, Hugh, Modern Social Politics in Britain and Sweden (New Haven: Yale University Press, 1974), 305–316Google Scholar; Amenta, Edwin, Clemens, Elisabeth, Olsen, Jefren, Parikh, Sunita, and Skocpol, Theda, “The Political Origins of Unemployment Insurance in Five American States,” Studies in American Political Development 2 (1987): 137–82Google Scholar.

177. Nathan, Jobs and Civil Rights.

178. Lieberman, Shaping Race Policy, 190.

179. Nathan, Jobs and Civil Rights, 45–46.

180. Nathan, Jobs and Civil Rights, 46 (emphasis added).

181. House Report No. 238, 12. See also Senate Hearings on S. 2453, 72 (statement of Jack Greenberg, director-counsel, NAACP Legal Defense and Education Fund).

182. Skrentny, The Ironies of Affirmative Action, 122–23; Nathan, Jobs and Civil Rights, 46.

183. Nathan, Jobs and Civil Rights, 46.

184. Jack Greenberg, correspondence with the author, 22 August 2007.

185. Jack Greenberg, correspondence with the author, 22 August 2007.

186. Blumrosen, Alfred W., Black Employment and the Law (New Brunswick: Rutgers University Press, 1971), 59Google Scholar.

187. Senate Hearings on Equal Employment Opportunity, 4–5.

188. Nathan, Jobs and Civil Rights, 45–46, 76.

189. Hearings on Equal Employment Opportunity Before the Subcommittee on Employment, Manpower, and Poverty of the Senate Committee on Labor and Public Welfare, 90th Cong, 1st sess., 1967 (hereinafter Senate Hearings on Equal Employment Opportunity), 127.

190. Senate Hearings on S. 2453, 70. See also 72.

191. Jack Greenberg, correspondence with the author, 22 August 2007.

192. Murphy, Reg and Gulliver, Hal, The Southern Strategy (New York: Scribner, 1971)Google Scholar; Cohodas, Nadine, Strom Thurmond and the Politics of Southern Change (New York: Simon & Schuster, 1993), 385–400Google Scholar; Kotlowski, Dean J., Nixon's Civil Rights: Politics, Principle, and Policy (Cambridge: Harvard University Press, 2001), 15–43Google Scholar.

193. Melnick, R. Shep, “Adversarial Legalism and the Civil Rights State,” paper presented at The Virtues and Vices of Legalism: A Conference to Honor the Work of Robert A. Kagan, Center for the Study of Law and Society, University of California, Berkeley, September 19, 2008Google Scholar.

194. Reed, Roy, “Job-Rights Chief Quits in Dispute on Nixon's Goals,” New York Times, 10 April 1969, 1Google Scholar; Reporter, Staff, “Government Aids Job Bias by Patronizing Noncompliant Firms, Rights Unit Charges,” Wall Street Journal, 2 May 1969, 4Google Scholar.

195. Reed, “Job-Rights Chief Quits in Dispute on Nixon's Goals.”

196. Staff Reporter, “Government Aids Job Bias by Patronizing Noncompliant Firms.”

197. Senate Hearings on S. 2453, p. 38–59 (testimony of EEOC Chairman William Brown).

198. Spivak, Jonathan, “Nixon Statement on School Desegregation Stirs Doubts About His Civil Rights Stance,” Wall Street Journal, 7 July 1969, 6Google Scholar.

199. Graham, The Civil Rights Era, 319.

200. Salomone, Rosemary, “Judicial Oversight of Agency Enforcement: The Adams and WEAL Litigation,” in Justice and School Systems: The Role of the Courts in Education Litigation, ed. Flicker, Barbara (Philadelphia: Temple University Press, 1990), 111–181Google Scholar; Halpern, Stephen C., On the Limits of Law: The Ironic Legacy of Title VI of the 1964 Civil Rights Act (Baltimore: Johns Hopkins University Press, 1995), chapter 4Google Scholar.

201. The fee shift was codified at 20 U.S.C. § 1617. For a discussion of the winding legislative history of this fee provisions, see Bradley v. School Board of City of Richmond, 416 U.S. 696, 716 n. 23 (1974).

202. Senate Report No. 61, 92nd Cong, 1st sess., 1971, p. 25.

203. Senate Hearings on S. 2453, 69 (statement of Jack Greenberg, director-counsel, NAACP Legal Defense and Education Fund).

204. Senate Hearings on S. 2453, 69.

205. Stein, Running Steel, Running America, 116. See also 113–20; Skrentny, The Ironies of Affirmative Action, 161–66; Frymer, Paul, “Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935–85, American Political Science Review, 97 (2003): 483–499CrossRefGoogle Scholar.

206. Eskridge, “Reneging on History?,” 646–50; Frymer, “Acting When Elected Officials Won't.”

207. Rutherglen, George, “Title VII Class Actions,” University of Chicago Law Review 47 (1980): 688–741CrossRefGoogle Scholar.

208. Miller, Arthur R., “Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the ‘Class Action Problem’,” Harvard Law Review 92 (1979): 664–694, 674–75CrossRefGoogle Scholar; “Developments in the Law: Class Actions,” Harvard Law Review 89 (1976): 1318–1644, 1353–54.

209. Frymer, Black and Blue, ch. 4.

210. Graham, The Civil Rights Era, 129–30, 430–31.

211. Senate Hearings on S. 2453, 70.

212. Senate Hearings on S. 2453, 70–71.

213. Senate Hearings on S. 2453, 75.

214. Senate Hearings on S. 2453, 64–68 (statement of Wendell Freeland, member of the Board of Directors of the National Urban League), 77–86 (statement of Clarence Mitchell, director of the Washington Bureau of the NAACP).

215. Hill, “Lichtenstein's Fictions,” 92.

216. Graham, The Civil Rights Era, 431.

217. Senate Hearings on S. 2453, 66–67 (statement of Wendell Freeland, member of the Board of Directors of the National Urban League), 69 (statement of Jack Greenberg, director-counsel, NAACP Legal Defense and Education Fund), 76 (statement of Joseph Rauh, general counsel, Leadership Conference on Civil Rights), 81–82 (statement of Clarence Mitchell, director of the Washington Bureau of the NAACP).

218. Jack Greenberg, correspondence with the author, 22 August 2007.

219. Rutherglen, “Title VII Class Actions,” 713; (emphasis added).

220. Sape and Hart, “Title VII Reconsidered,” 875–78.

221. Hearings on the bill had been held in the first session of the 90th Congress. See Hearings on S. 1358, S. 2114, and S. 2280 Before a Subcommittee on Housing and Urban Affairs of the Senate Committee on Banking and Currency, 90th Cong., 1st sess., 1967. The bill made it to the floor when offered as an amendment to a bill creating protections for civil rights workers against violence and intimidation (H.R. 2516). Congressional Record, 90th Congress, 2nd sess., 2/6/1968, 2270–73.

222. Congressional Record, 90th Congress, 2nd sess., 6 February 1968, 2271.

223. Dubofsky, Jean E., “Fair Housing: A Legislative History and a Perspective,” Washburn Law Journal 8 (1969): 149–66, 156Google Scholar.

224. Congressional Record, 90th Cong., 2nd sess., 20 February 1968, 3427.

225. Dubofsky, “Fair Housing: A Legislative History and a Perspective,” 156.

226. Dubofsky, “Fair Housing: A Legislative History and a Perspective,” 156–57; Lamb, Charles, “Congress, the Courts, and Civil Rights: The Fair Housing Act of 1968 Revisited,” Villanova Law Review 27 (1982): 1115–1162, 1124–25Google Scholar; Ware, Leland B., “New Weapons for an Old Battle: The Enforcement Provisions of the 1988 Amendments to the Fair Housing Act,” Administrative Law Journal, 7 (1993): 59–119, 73–74Google Scholar.

227. Congressional Record, 90th Cong., 2nd sess., 29 February 1968, 4670 (reprinting Washington Post Editorial of February 29, 1968). Richard Nixon also urged that passage of the Fair Housing Act would serve Republican interests in the upcoming election. Graham, The Civil Rights Era, 303.

228. Congressional Record, 90th Cong., 2nd sess., 28 February 1968, 4575.

229. Dubofsky, “Fair Housing: A Legislative History and a Perspective,” 156–57.

230. Congressional Record, 90th Cong., 2nd sess., 28 February 1968, 4572.

231. Congressional Record, 90th Cong., 2nd sess., 28 February 1968, 4573.

232. Congressional Record, 90th Cong., 2nd sess., 4 March 1968, 4960.

233. Congressional Record, 90th Cong., 2nd sess., 6 March 1968, 5514.

234. Ibid.

235. 102 Stat. 1619, 100 P.L. 430.

236. See, e.g., Samuel v. Benedict, 573 F.2d 580 (9th Cir. 1978); Crumble v. Blumthal, 549 F.2d 462 (7th Cir. 1977); Clemons v. Runck, 402 F.Supp. 863 (S.D. Oh. 1975).

237. 20 U.S.C. § 1617. For a discussion of the legislative history of this fee provisions, see Bradley v. School Board of City of Richmond, 416 U.S. 696, 716 n. 23 (1974).

238. Derfner, “Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976,” 657.

239. 90 Stat. 2641, 95 P.L. 559.

240. See, e.g., Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970); Waters v. Wisconsin Steel Workers, 427 F.2d 476 (7th Cir. 1970).

241. Monell v. City of New York Department of Social Services, 436 U.S. 658 (1978).

242. Richey, Charles R., Manual on Employment Discrimination Law and Civil Rights Actions in the Federal Courts, 2nd ed. (Saint Paul: Thomson/West, 1994)Google Scholar.

243. Paul Pierson, Dismantling the Welfare State?, 40. See also Weir, Margaret and Skocpol, Theda, “State Structures and the Possibilities for ‘Keynesian’ Responses to the Great Depression in Sweden, Britain, and the United States,” Bringing the State Back In, ed. Evans, Peter, Rueschemeyer, Dietrich, and Skocpol, Theda (Cambridge: Cambridge University Press, 1985), 107–63, 143–44CrossRefGoogle Scholar.

244. Derfner, Armand, “Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976,” Urban Lawyer 37 (2005): 653–661, 656Google Scholar; O'Connor and Epstein, “Bridging the Gap between Congress and the Supreme Court,” 241.

245. Rutherglen, “Title VII Class Actions,” 688.

246. Hearings on Legal Fees Before the Subcommittee on Representation of Citizen Interests of the Senate Judiciary Committee, 93rd Cong., 1st sess., 1973 (testimony of Armand Derfner), 1112–13.

247. O'Connor and Epstein, “Bridging the Gap between Congress and the Supreme Court,” 241.

248. McKay, Robert B., Nine for Equality Under Law: Civil Rights Litigation. A Report to the Ford Foundation (New York: Ford Foundation, 1977)Google Scholar; O'Connor and Epstein, “Bridging the Gap between Congress and the Supreme Court,” 240.

249. Derfner, “Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976,” 656; Armand Defner, correspondence with the author, 26 July 2007.

250. Nathan, Jobs and Civil Rights, 74–75.

251. Graham, The Civil Rights Era, 422.

252. The figures for 1970 and after come from Federal Court Cases: Integrated Data Base, 1970–2000, maintained by the Inter-University Consortium for Political and Social Research. Cases coded 442 (“civil rights, employment”) in this dataset include suits filed under Title VII; the Age Discrimination in Employment Act of 1967; the Rehabilitation Act of 1973, which prohibited certain forms of disability discrimination in employment by the federal government or by federal contractors; and employment discrimination claims filed under the Civil Rights Acts of 1866 and 1871. A content analysis of a sample of cases coded “civil rights, employment” during this period shows that approximately 80 percent were Title VII claims. Donohue, John J. III and Siegelman, Peter, “The Changing Nature of Employment Discrimination Litigation,” Stanford Law Review 43 (1991) 983–1033Google Scholar, 885 n.3. This is how I estimated the figures presented.

253. It is possible that the delay was caused, in part, by uncertainty about the legal standard courts would use in deciding whether to award attorney's fees because the statute stipulated that courts “may” make such an award. In 1968 the Supreme Court held unanimously that winning plaintiffs would automatically get fees unless special circumstances dictated otherwise. This bolstered plaintiffs' lawyers' confidence that they would be paid if they won civil rights cases under statutes with fee-shifting provisions. Derfner, “One Giant Step,” 442; Derfner, “Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976,” 654. Amendments in 1966 to the class-action provisions in the Federal Rules of Civil Procedure, which increased judges' discretion to recognize plaintiff classes, and liberal construction of those provisions by federal courts, likely also contributed to the increase, though individual (non-class) claims have always constituted the overwhelming majority of Title VII claims. Rutherglen, George, “Title VII Class Actions,” University of Chicago Law Review 47 (1980): 688–741CrossRefGoogle Scholar; Federal Court Cases: Integrated Data Base, 1970–2000, maintained by the Inter-University Consortium for Political and Social Research. Finally, some of the increase in filings also can be attributed to the EEOA of 1972, which extended Title VII coverage to (i) employers with between 15 and 24 employees (the original law only covered employers with 25 or more employees); (ii) employees of federal and state governments, and (iii) employees of educational institutions. These incremental increases in the covered workforce could only account for a small share of the nearly tenfold increase in total Title VII filings between 1970 and 1975.

254. The litigation figures come from Federal Court Cases: Integrated Data Base, 1970–2000, maintained by the Inter-University Consortium for Political and Social Research. The population figures come from linear interpolation between the 1970 and 1980 United States Census.

255. Derfner, “One Giant Step,” 441–451, 444–45.

256. Derfner, “One Giant Step,” 445.

257. Hearings on Legal Fees Before the Subcommittee on Representation of Citizen Interests of the Senate Judiciory Committe, 93rd Congress, 1st sess., 1973 (testimony of Armand Derfner), 1113.

258. McKay, Nine for Equality Under Law, 8, 13.

259. Crider, Bill, “Civil Rights Turns to Gold Lode for Southern Lawyers,” Washington Post 4 April 1976, 59Google Scholar.

260. See, e.g., Bradshaw v. U.S. Dist. Court for Southern Dist. of California, 742 F.2d 515, 516 (9th Cir. 1984); Vymetalik v. E.E.O.C., 1987 WL 19005, 2 n.3. (D. D.C. 1987); Johnson v. NCT Services, 631 F. Supp. 606, 607 n.1; (D. Hi. 1986); Sol v. I.N.A. Ins. Co., 414 F. Supp. 29, 30 (E.D. Pa. 1976).

261. In re Nine Applicants, 475 F. Supp. 87 (N.D. Al.1979); Brooks v. Central Bank of Birmingham, 1982 WL 365 (N.D. Al. 1982).

262. Derfner, “Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976,” 656.

263. See, e.g., Stanford Daily v. Zurcher, 366 F.Supp. 18 (D.C. Ca. 1973) (plaintiff successfully arguing for the availability of attorney's fees under the CRA of 1871, drawing analogy to the fee provisions in the CRA of 1964); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1972) (plaintiff successfully arguing for the availability of attorney's fees under the CRA of 1866, drawing analogy to the fee provisions in the CRA of 1964); Derfner, “One Giant Step.”

264. Ibid.

265. 421 U.S. 240 (1975).

266. Derfner, “Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976,” 653–58.

267. Hearings on Legal Fees Before the Subcommittee on the Representation of Citizen Interests of the Senate Judiciary Committee, 93rd Cong., 1st sess., 1973. Although these hearings considered attorney fee shifting in a number of different policy areas, civil rights was included among them, and the Senate Report on the CRAFAA of 1976 states explicitly that it relied upon these hearings. Senate Report No. 1011, 94th Cong., 2nd sess., 29 June 1976, 2.

268. Hearings on Awarding of Attorneys' Fees Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Committee, 94th Cong., 1st sess., 1975.

269. Berg, “Equal Employment Opportunity Under the Civil Rights Act of 1964,” 96–97.

270. Graham, The Civil Rights Era, 424; Greenberg, Race Relations and American Law, 16, 101, 138, 271; Nathan, Jobs and Civil Rights, 47–50, 75; Sovern, Legal Restraints on Racial Discrimination in Employment, 79; Stein, Running Steel, Running America, 85; Watson, Lion in the Lobby, 362–63; Senate Hearings on S. 2453, 43 (statement of Senator Ralph Yarborough), 60 (statement of Clifford Alexander, member and former chairman of the EEOC), 66 (statement of Clarence Mitchell, director of the Washington Bureau of the NAACP).

271. Annual Report of the Administrative Office of the United States Courts, Table C-2.

272. Senate Report No. 1011, 4.

273. Congressional Record, 94th Cong., 2nd sess., 21 September 1976, 31471.

274. Congressional Record, 94th Cong., 2nd sess., 29 September 1976, 33313.

275. Congressional Record, 94th Cong., 2nd sess., 29 September 1976, 33314.

276. House Report No. 1558, 94th Cong., 2nd sess., 15 September 1976 (hereinafter House Report No. 1558), 1.

277. Congressional Record, 94th Cong., 2nd sess., 21 September 1976, 31472.

278. Congressional Record, 94th Cong., 2nd sess., 29 September 1976, 33313.

279. Congressional Record, 94th Cong., 2nd sess., 1 October 1976, 35127.

280. Congressional Record, 94th Cong., 2nd sess., 1 October 1976, 35128.

281. Senate Report No. 1011, 94th Cong., 2nd sess., 29 June 1976 (hereinafter Senate Report No. 1011), 4.

282. Congressional Record, 94th Cong., 2nd sess., 21 September 1976, 31471.

283. Congressional Record, 94th Cong., 2nd sess., 21 September 1976, 31479.

284. Congressional Record, 94th Cong., 2nd sess., 21 September 1976, 31472.

285. Congressional Record, 94th Cong., 2nd sess., 29 September 1976, 33314.

286. Congressional Record, 94th Cong., 2nd sess., 21 September 1976, 31473–74.

287. Congressional Record, 94th Cong., 2nd sess., 28 September 1976, 32933–34.

288. Congressional Record, 94th Cong., 2nd sess., 1 October 1976, 35130 (ICPSR House Roll Call No. 1280); Congressional Record, 94th Cong., 2nd sess., 29 September 1976, 33315 (ICPSR Senate Roll Call No. 1298).

289. Congressional Record, 94th Cong., 2nd sess., 22 September 1976, 31835 (ICPSR Senate Roll Call No. 1248) (Helms [R-NC] amendment to exempt state and local governments from the bill); Congressional Record, 94th Cong., 2nd sess., 22 September 1976, 31858 (ICPSR Senate Roll Call No. 1251) (Thurmond [R-SC] amendment to prohibit application of the Act to busing cases); Congressional Record, 94th Cong., 2nd sess., 27 September 1976, 32388 (ICPSR Senate Roll Call No. 1270) (Allen [D-AL] amendment to restrict fee awards to circumstances in which opposing party acted in a “contumacious or vexatious manner”); Congressional Record, 94th Cong., 2nd sess., 27 September 1976, 32394 (ICPSR Senate Roll Call No. 1271) (Thurmond [R-SC] amendment to provide for payment of attorney's fees by plaintiffs to defendants if the court finds the action to be frivolous); Congressional Record, 94th Cong., 2nd sess., 24 September 1976, 32396 (ICPSR Senate Roll Call No. 1273) (Helms [R-NC] amendment to provide that attorney's fees could only be awarded against a party that behaved with bad faith); Congressional Record, 94th Cong., 2nd sess., 28 September 1976, 32927 (ICPSR Senate Roll Call No. 1282) (Allen [D-AL] amendment to eliminate the Civil Rights Act of 1866 from coverage by the bill); Congressional Record, 94th Cong., 2nd sess., 28 September 1976, 32934 (ICPSR Senate Roll Call No. 1289) (Helms [R-NC] amendment to eliminate the Civil Rights Act of 1866 from coverage by the bill).

290. Congressional Record, 94th Cong., 2nd sess., 27 September 1976, 32397-98 (ICPSR Senate Roll Call No. 1274) (Allen [D-AL] amendment to bar the award of attorney's fees under the Equal Employment Opportunity Act of 1972); Congressional Record, 94th Cong., 2nd sess., 28 September 1976, 32391 (ICPSR Senate Roll Call No. 1285) (Scott [R-VA] amendment to bar the award of attorney's fees against federal or state governments under Titles II or VII of the CRA of 1964, or the CRA of 1965, as amended in 1975); Congressional Record, 94th Cong., 2nd sess., 28 September 1976, 32933 (ICPSR Senate Roll Call No. 1287) (Helms [R-NC] amendment to create a mandatory award of attorney's fees to prevailing defendants under Titles II and VII of the CRA of 1964, the CRA of 1965, and the Reconstruction civil rights laws).

291. Congressional Record, 94th Cong., 2nd sess., 21 September 1976, 31476 (ICPSR Senate Roll Call No. 1236) (Kennedy [D-MA] amendment to expand application of the act to sex or blindness discrimination in educational institutions receiving federal funds).

292. Congressional Record, 94th Cong., 2nd sess., 28 September 1976, 32931 (ICPSR Senate Roll Call No. 1285) (Scott [R-VA] amendment to bar the award of attorney's fees against federal or state governments under Titles II or VII of the CRA of 1964, or the CRA of 1965, as amended in 1975); Congressional Record, 94th Cong., 2nd sess., 28 September 1976, 32933 (ICPSR Senate Roll Call No. 1287) (Helms [R-NC] amendment to create a mandatory award of attorney's fees to prevailing defendants under Titles II and VII of the CRA of 1964, the CRA of 1965, and the Reconstruction civil rights laws).

293. Congressional Record, 94th Cong., 2nd sess., 1 October 1976, 35130 (ICPSR House Roll Call No. 1280); Congressional Record, 94th Cong., 2nd sess., 29 September 1976, 33315 (ICPSR Senate Roll Call No. 1298).

294. Hearings on Legal Fees Before the Subcommittee on the Representation of Citizen Interests of the Senate Judiciary Committee, 93Cong., 1st sess., 1973; Hearings on Awarding of Attorneys' Fees Before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Committee, 94th Cong., 1st sess., 1975. Although the hearings considered plaintiffs ability to recover attorney's fees in a number of different policy areas, civil rights was included among them, and the Senate Report on the CRAFAA of 1976 states explicitly that it relied upon these hearings. Senate Report No. 1011, 94th Cong., 2nd sess., 29 June 1976, 2.

295. The NAACP's lead lobbyist Clarence Mitchell called a meeting of leaders of civil rights groups after the Alyeska decision, and at the meeting civil rights groups agreed to place the goal of obtaining a statutory fee provision to govern all civil rights laws at the top of their legislative agenda. Carrying out this agenda, lobbyist Mitchell approached congressional Democrats and got the bill introduced that led to the CRAFAA of 1976. Derfner, “Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976,” 653–58; Armand Derfner, correspondence with the author, 19 September 2007.

296. See, e.g., Stein, Running Steel, Running America, 84–85; Chen, The Fifth Freedom, ch. 5; Rodriguez and Weingast, “The Positive Political Theory of Legislative History,” 1489–96; Skrentny, The Ironies of Affirmative Action, 120–25; but also see Lieberman, Shaping Race Policy; Frymer, Black and Blue, ch. 4.

297. As I suggested in the discussion of the changes made in the Senate, if one were to look only at those Republican amendments, the case is stronger that Republicans created a much more interventionist enforcement framework than would have occurred if the Senate had just accepted the House-passed version of Title VII. This is because cease-and-desist was already gone by the time the bill reached the Senate, and all Dirksen extracted in exchange for the private enforcement regime that he gave was to move the governmental right to sue from the EEOC to the Justice Department, and to limit the right to initiate suit to pattern or practice claims. This governmental right to sue, in both individual and pattern or practice claims, was restored to the EEOC in the EEOA of 1972, so antiregulatory Republicans were unable to retain the regulation-weakening benefits that they had received in exchange for the private enforcement regime that Dirksen created. However, it must be acknowledged as well that the move for cease-and-desist between 1965 and 1972, which nearly succeeded, may well have been stronger in the absence of private litigation to shoulder the enforcement burden. Thus, assessing the ultimate effects of Dirksen's enforcement bargain is a quite speculative endeavor.

298. The fraction was between 3 and 6 percent between 1970 and 1975. See Annual Reports of the Equal Employment Opportunity Commission, 1970–1975, and Federal Court Cases: Integrated Data Base, 1970–2000, maintained by the Inter-University Consortium for Political and Social Research. Whereas the fraction grew in later years, it has remained the case that a very large majority of EEOC charges are not prosecuted in federal court.