To what degree did the emergence of a large union movement in the middle decades of the 20th century advance the civil rights an

History 167cb Capitalism and Class

Instructor: Nelson Lichtenstein

Five Page Paper Due February 28, 2022

Write a five-page paper seeking to answer the following questions.

1.To what degree did the emergence of a large union movement in the middle decades of the 20th century advance the civil rights and general economic well-being of African-Americans and Latina/os during those same decades. To what extent did these new unions and the new laws that helped sustain them prove problematic for the civil rights movement; and conversely, to what degree did the emergence of a powerful “rights consciousness” in the 1960s and afterward diminish the appeal of trade unionism and collective bargaining? Consider the nature of the Wagner-era labor law and also that of the civil rights laws enacted in the 1960s.

Create an argument and back it up with examples from the readings and the lectures. Use more than one source from the various assigned readings. The paper is due on Gauchospace at 11 p.m. on February 25. Double space and put footnotes at the bottom of the paper.

A successful essay demonstrates an understanding of the arguments put forward by the author of the books and essays you have read and chosen to cite. But avoid long quotations and instead use example and narrative, mainly in your own words, to explain the meaning of the historians or historical figures you have read. And of course, if you think the authors or sources disagree on some points, tell us that as well. Indeed, understanding such conflicts of interpretation should make for a very good essay.

Do not use social science notation! Instead use the kind of footnotes or endnotes that the author of State of the Union deploys.

Labor: Studies in Working-Class History of the Americas, Volume 11, Issue 3

DOI 10.1215/15476715-2687664 © 2014 by Labor and Working-Class History Association

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Title VII in Economic-Historical Perspective

Gavin Wright

The Civil Rights Act of 1964 fully deserves its status as a watershed achievement in American political and social history, and Title VII merits full marks as a land- mark in national economic history. Enforcement of Title VII generated major eco- nomic gains for African Americans, advances that for the most part have been sus- tained over time. In drawing lessons from this historical record, however, it must be recognized that the successes reflected a specific set of channels in a particular his- torical context. The primary driving forces were grass-roots mobilization for racial justice and pressure from all three branches of the federal government. Most of the gains were realized in the South, reflecting the low starting point in that region’s transition from decades of Jim Crow segregation as well as the organizational cohe- sion descended from the civil rights movement. It is far from clear that the same or similar approaches can be effective in confronting racial and class inequalities in the twenty-first century.

The role of political mobilization was important from the beginning. Early drafts of the Kennedy administration’s civil rights bill did not even include a fair employment section, perhaps because the issue was already being addressed by the President’s Commission on Equal Employment Opportunity (overseeing compliance by federal contractors under John F. Kennedy’s 1961 executive order) and by voluntary efforts under the Plans for Progress program launched in the same year. This omis- sion was reversed in response to vigorous lobbying by several groups allied in the civil rights coalition. These advocates well understood that progress under existing pro- grams was painfully slow at best. Although the resulting act prohibited employment discrimination on the basis of race or color (as well as religion, sex, and national ori- gin), many contemporary observers expected little of significance from Title VII. Not only did the text contain glaring loopholes (such as protection for “bona fide” seniority or merit systems), but the newly created Equal Employment Opportunity Commis- sion (EEOC) had limited powers of enforcement. Because the EEOC could neither issue “cease-and-desist” orders nor initiate lawsuits, it was described by discrimination

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expert Michael Sovern in 1966 as a “poor, enfeebled thing . . . [with] the power to con- ciliate but not to compel.”1

Nonetheless, passage of Title VII had a galvanizing effect on black job seek- ers. Emboldened by a sense of legal standing (as well as strength in numbers), black men and women began to apply for jobs in the southern textiles industry from which they had long been excluded. The EEOC actively encouraged this assertiveness. Although textile firms initially resisted and dragged their feet, within a few years they came to see the advantages of an expanded labor supply. The New York Times reported in 1969: “Virtually all of the large [textile] companies have begun to preach a doctrine of equal, color-blind employment.”2

Outside of textiles, progress was slower and more litigious, as workers invoked Title VII to challenge segregated “lines of progression.” In the higher paying paper industry, many applications for job transfers were filed almost immediately after the act came into effect on July 2, 1965. When the transfers were not approved, workers sued, supported by the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund. In a landmark 1968 case, the US Justice Department sued Crown-Zellerbach, a major paper employer based in Bogalusa, Louisiana, along with its leading union. The outcome was a court determination that even a super- ficially neutral seniority system could be illegal if it hindered rectification of long- standing barriers to black advancement opportunities. This decision led in turn to the Jackson Memorandum of 1968, negotiated by the Office of Federal Contract Compli- ance, in which International Paper and its southern unions accepted the principle that blacks could advance to their “rightful place” on the companywide seniority ladder.3

Another landmark decision was Griggs v. Duke Power (1971), which estab- lished the “disparate impact” test for discrimination in promotion criteria. On March 1, 1966, fourteen janitors from the all-black Labor Department at Duke Power’s Dan River plant signed a letter of complaint about the absence of promotion opportuni- ties. The letter requested “promotion [for janitors] when vacancies occur” into any of four specified job classifications. The instigator, a former tobacco sharecropper named Willie Boyd, had been active in the NAACP for years and closely followed passage of Title VII. The company informed the men that standards were being raised and that they were welcome to take the test required for promotion. The group then for- warded their complaint to the EEOC, which tried to resolve the matter through con- ciliation. When this effort also proved fruitless, the workers turned to the NAACP Legal Defense Fund, which assisted them in filing suit on September 9, 1966. After setbacks in appeals courts, the Supreme Court ruled unanimously — five years after the initial complaint — that tests having a disparate impact on minorities could be

1. Timothy J. Minchin and John A. Salmond, After the Dream: Black and White Southerners since 1965 (Lexington: University Press of Kentucky, 2011), 75.

2. Roy Reed, “Industry in South Was Negro Labor,” New York Times, May 19, 1969. 3. Timothy J. Minchin, The Color of Work: The Struggle for Civil Rights in the Southern Paper Industry,

1945–1980 (Chapel Hill: University of North Carolina Press, 2001).

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invalid regardless of intent, unless shown to be demonstrable measures of job perfor- mance. As a result of the decision, the high school graduates in Duke’s Labor Depart- ment were promoted, and education and testing requirements were waived for the others. Willie Boyd ultimately became the first black supervisor over white men at the Dan River plant.4

More fundamentally, Griggs and related rulings gave new credibility to EEOC guidelines and impelled a much more thoroughgoing change than firms had antici- pated. Veteran labor lawyer and legal scholar Alfred W. Blumrosen writes: “Griggs infused Title VII with extraordinary power. . . . Without Griggs, the statute might have warranted little more than a text note in law case courts.” Citations to the case in federal courts rose steadily through the 1970s, reaching a peak in 1980 before declin- ing in the next decade. The Griggs principle went well beyond what could have been predicted in 1964, but as Blumrosen concludes: “There was no ‘plain meaning’ to Title VII.”5 It acquired specific meaning only through the ongoing efforts of work- ers, activists, and lawyers, supported by the courts. Congress added to the impact by passing the Equal Employment Opportunity Act of 1972, finally giving litigation power to the EEOC and extending Title VII coverage to state and local governments.

Did this extended struggle to make Title VII operational have any signifi- cant effect in the real world? Emphatically yes. Figure 1 displays the black share of white-collar and blue-collar occupations by region, as compiled from EEO-1 reports from large employers. The picture clearly shows a sharp upward surge in black occu- pational status after 1965, in all regions but especially in the South. Prior to the act, black occupational shares were increasing slowly in the North and West (from 1950 and perhaps earlier, according to US Census Bureau figures) but stagnant or declin- ing within the South. Thus the strong positive growth in southern states after 1965 seems clearly attributable to Title VII.

Most early gains were in southern blue-collar occupations. The South was a tempting target for Title VII, because discrimination was perpetuated there through explicit segregation systems. Most of these were dismantled between 1965 and 1980, with significant benefits for black southerners. James Heckman and his collaborators show that relative black income gains during this era were overwhelmingly southern, reflecting primarily a shift from “laborer” into higher-paying “operative” and “crafts- man” positions.6 Advances were not limited to the South, but elsewhere progress slowed to a crawl after 1980, roughly coincident with the drastic cutbacks in funding

4. Robert Samuel Smith, Labor and Civil Rights: Griggs versus Duke Power and the Struggle for Equal Employment Opportunity (Baton Rouge: Louisiana State University Press, 2008).

5. Alfred W. Blumrosen, “The Legacy of Griggs: Social Progress and Subjective Judgments,” Chicago- Kent Law Review 63 (1987): 1–3; and Modern Law: The Law Transmission System and Equal Employment Opportunity (Madison: University of Wisconsin Press, 1993), 337.

6. Richard J. Butler, James Heckman, and Brook Payner, “The Impact of the Economy and the State on the Economic Status of Blacks,” in Markets in History, ed. David Galenson (Cambridge: Cambridge Uni- versity Press, 1989); and John J. Donohue III and James Heckman, “Continuous versus Episodic Change: The Impact of Civil Rights Policy on the Economic Status of Blacks,” Journal of Economic Literature 29 (1991): 1603–43.

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and staffing at the EEOC and the Office of Federal Contract Compliance Programs at that time.

What is perhaps most surprising is that growth in the black share of white-collar employment continued long after the post-1980 political transition, but almost exclusively in the South. We do not yet know all of the reasons for this pattern, but the list of likely contributing factors includes long-term gains in black educational attainment, economic growth in southern cities with large black populations and political representation, “networks effects” associated with historically black southern communities, and the impact of black representation in corporate management on recruitment and retention of new black employees.7 We can say with more confidence that these gains were not driven by increasingly forceful applications of Title VII to private employers in the South, because, with rare though important exceptions (such as Texaco and Coca-Cola), racial employment discrimination cases sharply declined relative to other types of employment issues as of the 1980s.8

7. Zoë Cullen and I are currently engaged in a study addressing this question, drawing on EEOC data. 8. John J. Donohue III and Peter Siegleman, “The Changing Nature of Employment Litigation,”

Stanford Law Review 43 (1991): 983–1083; and “The Evolution of Employment Discrimination Law in the 1990s,” in Handbook of Employment Discrimination Research, ed. Laura Beth Nielsen and Robert L. Nelson (Dordrecht, the Netherlands: Springer 2005).

Figure 1. Black share of white-collar and blue-collar occupations, south and elsewhere, 1966–2009. Source: EEOC EEO-1 reports. Observations for 1966–70 are taken from the annual EEOC publication Job Patterns for Minorities and Women in Private Industry. Blue-collar occupations include both operative and skilled crafts, excluding laborer and service jobs.

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What then are we to make of the legacy and current status of Title VII in light of this brief historical survey? The legislation was clearly prompted by the race issue, and in this realm, it has been a great success, generating lasting gains for Afri- can Americans through major reductions in racial exclusions and inequities, with few signs of significant inefficiencies in the process. But even during the era of its great- est achievements, and certainly since then, Title VII has been soaked in paradox: it prohibits discrimination on the basis of race or color, yet progress has not come pri- marily from ignoring race but by taking race systematically into account. Title VII’s main accomplishments have occurred in a region where racial consciousness remains strong. The uneasy partnership between universalist rhetoric and race-conscious mobilization has been historically productive, but it is difficult to see this same for- mula as the major vehicle in current and future struggles against economic inequal- ity. Racial prejudice and subtler forms of discrimination no doubt continue, but they have been overwhelmed by structural changes in the US labor market that could not have been foreseen in 1964.

The principles of Title VII are still important and should clearly be retained. They were effectively extended to women in the original legislation and by subse- quent court ruling to sexual harassment. Later legislation extended protected status to age, pregnancy, and disabilities, and we may soon see a further extension to sexual orientation. Individuals in all of these categories deserve protection against discrim- ination in employment and on the job. But with a majority of the labor force now in protected status, Title VII can hardly serve as the basis for the racial, ethnic, and gender- based coalition that our times require. Antidiscrimination laws will not raise the living standards or life prospects of large numbers of low-income Americans, as they did during the civil rights era.

It should not be discouraging to acknowledge that reform strategies that were effective in one historical era do not carry over readily to another time. We can still look to history for inspiration. In building coalitions across racial, ethnic, and gen- der lines, we can hardly do better than to draw upon the inclusive values of the civil rights movement.

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Labor: Studies in Working-Class History of the Americas, Volume 11, Issue 3

DOI 10.1215/15476715-2687682 © 2014 by Labor and Working-Class History Association

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The Civil Rights Act of 1964: The Difference a Law Can Make

Nancy MacLean

What difference can a reform make? That’s a timely question in the United States today. Many previous victories of progressive social movements now face mortal threat from determined opponents, among them the Voting Rights Act of 1965 and the right of workers to organize collectively, to select just two. The fiftieth anniversary of the Civil Rights Act of 1964 offers historians an opportunity to remind the public of how a legislative milestone, even one containing many compromises, improved the quality of life for millions of ordinary Americans and ennobled our culture. Rather than minimize the significance of the law, as some are wont to do, scholars should highlight the vast advances it enabled — while also drawing attention to the obstacles that kept it from achieving its full promise.

The Civil Rights Act of 1964 is one of the premier legislative victories of American social movements; it also illuminates how a historic reform can advance activism and alter movement strategy. The product of long struggle by African Americans and progressive white allies, particularly Jewish activists, the bill addressed many areas of public life. It sought to end segregation and discrimination in are- nas including workplaces, courts, polls, government agencies, municipal facilities, schools, and public accommodations such as restaurants, motels, and transportation. The Supreme Court’s Brown v. Board of Education decisions had no bite, for exam- ple, until the civil rights act added teeth. Its Title VI, which enabled the withdrawal of federal funds from districts that continued to discriminate, sparked the first school desegregation efforts that went beyond tokenism.

But the section of the act that prohibited discrimination on the job — Title VII — had the most far-reaching and enduring impact. Civil rights activists had made fair employment legislation their top legislative priority for two decades after Con- gress, cowed by an alliance of southern segregationists and northern business interests, failed to continue the World War II Fair Employment Practices Committee won by labor leader A. Philip Randolph’s March on Washington movement. The combined power of these potent enemies of labor rights and racial reform defeated dozens of

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postwar efforts to prevent employment discrimination and made Title VII the most hotly contested element of this hard-won act. It passed only after a historic 534-hour filibuster.

Today few remember what a radical achievement this was. Indeed, without Lyndon Johnson’s singular legislative genius, it would not have passed. The act ele- vated human rights above property rights in America for the first time since eman- cipation ended slavery without compensation to those who owned and traded men, women, and children. Property rights had trumped all other claims from the defeat of Reconstruction through the New Deal, owing to the Supreme Court’s interpre- tation of the Fourteenth Amendment to protect corporate personhood rather than actual African American persons. Where discrimination was concerned, property owners continued to reign all powerful in national law until 1964. Corporations and other employers were free to refuse to consider African Americans, Jews, Latinos, Asian Americans, and women of all backgrounds for any or all jobs.

The extent of the change can be gauged by the vitriol of the act’s opponents. The southern segregationists and right-wing business interests who were joining together in the nascent conservative movement fought hard to defend, as some put it, “the precious right to discriminate.” They were losing a power they had long taken for granted as vouchsafed to them by the “original intent” of the Constitution. Out- raged, many came together in a quest to take over the party of Lincoln and remake it in their image. In the wake of the passage of the civil rights act, they rallied to the 1964 presidential candidacy of Arizona Republican US Senator Barry Goldwater, the anti-union, free-market apostle who said in explanation of his vote against the legislation, “Our right of property is perhaps our most sacred right.”1

Much to the horror of such opponents, the civil rights act heralded a new America. The federal government now affirmed a commitment to end discrimi- nation and provided tools for aggrieved citizens to secure equal opportunity. They could file complaints with the new Equal Employment Opportunities Commission (EEOC) and sue employers for violating their right to fair treatment. The movement organizations that fought for the reform’s passage helped them to do so. The legend- ary labor secretary of the National Association for the Advancement of Colored Peo- ple (NAACP), Herbert Hill, reminded the organization’s branches that “Title VII is not self-enforcing,” as he traveled the country to teach black workers about this new resource and how they could use it to fight discrimination.

Public officials were wholly unprepared for the number of complaints workers filed: some nine thousand in the EEOC’s first year, which climbed to seventy-seven thousand by 1975. “It was difficult to do anything before the Civil Rights Bill was passed,” explained a North Carolina worker; “there wasn’t anything to do, you were scared to talk.” But with it, he and other workers filed not just complaints but ulti-

1. For a fuller account of all the processes described here and the sources for quotations in the text, see Nancy MacLean, Freedom Is Not Enough: The Opening of the American Work place (Cambridge, MA: Har- vard University Press, 2006).

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mately class-action lawsuits — another new departure from the old legal regime, which empowered collective action in the courts as never before. Between 1965 and 1971, more than twelve hundred such lawsuits were filed against what one attorney called “labor apartheid.” When they won costly back-pay settlements, corporations began adopting more proactive efforts at inclusion. The new climate created by pas- sage of the act also gave a boost to the decades-old effort to end discrimination by fed- eral contractors, which led to potent and effective affirmative action remedies. These combined measures enabled black workers to gain access to once-closed employment and promotion as never before, even in some industries as recalcitrant as southern textiles, long lily-white.

As it enabled victims of racial and religious discrimination to challenge wrongdoing, Title VII of the act also empowered American women as nothing had since 1920, when they won the right to vote after more than seventy years of strug- gle. Contemporary women activists were most focused on workplace matters, and Title VII provided them with an unprecedented lever for change. They used it with an alacrity and ingenuity that took all observers by surprise. The prospect of equal employment — and the EEOC’s initial reluctance to act on sex discrimination — gave rise in 1966 to the largest and most lasting organization of the new women’s move- ment, the National Organization for Women (NOW). Over the next few years its members lobbied government, sued in court, and organized at the grass roots throughout the country to win fair treatment for women in every line of work from the skilled trades to the professions. They pried open door after door long slammed in women’s faces — among them, tenured faculty positions in the nation’s colleges and universities. Led by African American visionaries such as Pauli Murray and Eleanor Holmes Norton, feminists increasingly allied with civil rights groups in legal coali- tions to end racial and gender discrimination. They also broadened understanding of the nature of discrimination, as evidenced by the Supreme Court’s recognition of sexual harassment as illegal employment discrimination in 1985.

The civil rights act also encouraged Mexican American activists to rethink their strategies of empowerment. “Whether Mexicans are whites or people of color,” the veteran activist Bert Corona observed near the time of its passage, “has been a thorny issue for years.” The issue was above all a political one: whether to form coa- litions with African Americans, in particular, on the basis of nonwhite identity or pursue advancement through assimilation and respectability, as white immigrants from Europe had. The legal construction of race prior to the Civil Rights Act of 1964 encouraged Mexican Americans to lay claim to whiteness in order to have any hope of escaping discrimination. The 1848 Treaty of Guadalupe Hidalgo had effectively made Mexicans in US territory “white” by recognizing them as citizens at a time when naturalization law made whiteness a prerequisite of citizenship. As a result, for more than a century, Mexican Americans’ main line of defense against being subject to the same abysmal treatment as African Americans was to hold the US government accountable for treating them as “white,” sometimes with backing from the Mexican

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government. As long as discrimination against minorities was legal, this leverage was their only hope of protection. By providing better tools to battle discrimination, the 1964 act enabled Mexican Americans to pursue a strategy that was also more likely to lead to cooperation with other minorities. Changing the legal ground on which Mexican American and African American political activists encountered one another created new possibilities for national and local alliances to advance progressive poli- tics more generally.

These wide-ranging efforts, in turn, enabled others. The rights struggles of lesbian, gay, bisexual, transgendered, and queer (LGBTQ) Americans and of peo- ple with disabilities built on the groundwork laid by the civil rights act, as activists in these causes emulated the arguments and tactics of African Americans, Mexican Americans, and women of all groups. The passage of the 1990 Americans with Dis- abilities Act, the opening of the military to lesbians and gay men, and the prospect of marriage equality all would have been unthinkable without the passage of the civil rights act and the transformation in culture it expressed and furthered.

It is a truism among political scientists and legal scholars that reforms have about a fifteen-year window to do their work before their opponents find ways to circumvent them. That was true — with uncanny precision — of the civil rights act. Advocates of equal employment made significant headway right through the 1970s, when both racial and sex segregation on the job broke down as never before, but the effort ground to a crawl after the election of Ronald Reagan to the presidency in 1980. Reagan was a movement conservative who first came to national attention for the powerful 1964 speech he gave in support of Barry Goldwater, the only Republi- can senator to have voted against the civil rights act and the spokesman for the effort to drive moderates from the GOP. Once in office Reagan’s people set about systemat- ically undermining the fight against discrimination, from underfunding the agencies charged with ending it, to appointing leaders hostile to their missions, to backing and even soliciting “reverse discrimination” lawsuits designed to roll back previous legal victories. After 1980, nearly all studies find a cessation of black advances in particular.

The tougher atmosphere for equal employment advocates after 1980 was not simply due to conservative opposition, even as that should never be understated because it was continuous and increasingly powerful over time. One challenge was that Title VII’s supports and companion measures weakened gravely over the years. The law was never envisioned as a panacea; most activists saw it as part of a larger toolkit to create greater fairness in American life. The labor movement, the nation’s prime force for economic justice, was at its peak strength during the fight for the civil rights act, in which it played an indispensable role. Since then, however, its members have seen their power chipped away by economic change, fierce employer opposition, weak leadership, waning liberal commitment to trade unions, and the effective loss of the right to strike. The mass membership advocacy groups that helped win and enforce the act in its first decade — preeminently the NAACP, the American Jew- ish Committee, and NOW — are also weaker and less attentive to workplace and

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working- class issues.2 So, too, are the liberal religious bodies that proved so pivotal in lobbying for the civil rights act and helping to create a far-reaching values-based con- sensus against discrimination.3

The economy itself was also a big challenge: after the mid-1970s, it altered

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