The Volokh Conspiracy - Justice Ginsburg and the "Purpose" of Title VII:

Dissenting today in Ledbetter v. Goodyear Tire & Rubber Co., Justice Ginsburg writes, "This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute's broad remedial purpose."

The history of Title VII and its "purpose" is, at best, much more ambiguous than that. Title VII was modeled after state antidiscrimination laws enforced by Fair Employment Practice Commissions, which spread throughout the North and Midwest after WWII. The FEPCs focused on mediation between the aggrieved party and the allegedly discriminating employer, often lacked much in the way of enforcement power, and were widely perceived as largely ineffectual. Title VII built on various aspects of the FEPCs; the requirement of getting EEOC approval to file a suit, for example, built on the FEPC's agency-centered procedures. Civil rights advocates did win the right to sue with agency permission, but with damage caps and time limits.

At the time of its passage, then, many thought that Title VII would turn out to be not much more consequential than the FEPCs had been. In fact, my impression is that the public accommodations provision of the 1964 Civil Rights Act was far more controversial than was Title VII, especially when advocates for the latter promised it would not interfere with union seniority schemes or mandate "reverse discrimination."

Much to most people's surprise, however, civil rights advocates within the Justice Department turned Title VII into a powerful tool, by bringing large-scale class actions against employers, often on a disparate impact theory that was very far from the minds of Congress in 1964. Moreover, while at the time Title VII was thought to primarily be concerned with discrimination in hiring, plaintiffs' attorneys eventually realized there was more money, and a greater possibility of success, in filing cases involving discrimination in firing. All of this was nudged along by sympathetic courts, who consistently proclaimed, quite falsely, that Congress had intended Title VII to be a very broad, vigorous, remedial statute.

Whatever one thinks of this outcome, there's no excuse for distorting the history of the statute. In fairness to Justice Ginsburg, Congress did endorse many of the innovations initiated by Justice and plaintiffs' attorneys in later legislation, such as the Civil Rights Act of 1991. [Update: But to the extent she is arguing that even unamended parts of Title VII should be interpreted broadly because the statute, in 1964, had a broad remedial purpose, that is a rather distorted view of the law's history. As Justice Ginsburg suggests, the current Congress might choose to adopt her interpretation of Title VII through new legislation, but that is hardly evidence that her interpretation is consistent with the scope and intent of the statute as written.]

FURTHER UPDATE: I think it's a mistake to look at legislative "intent", which is easily manipulated post hoc. Rather, the issue is the "purpose" of Title VII, which can be easily gleaned from the text of the statute: to provide certain limited rights for individuals to sue for employment discrimination. The law's purported "broad remedial purpose" is contradicted by the requirement of EEOC approval to sue, but its application only to large employers, by damage caps, and so on. To the extent this isn't clear from the face of the statute, its historical relationship to the modest fair employment practice laws should make it clear. Congress has since broadened the statute somewhat, but not to the extent that one could reasonably argue that the law is intended to skew the balance drawn between employee and employer interests heavily in favor of the employees, as Justice Ginsburg's opinion suggests.

I picked on Justice Ginsburg's opinion because its language, joined by three other Justices, recalls the excesses of the Warren and Burger Court. In those days, the Court would routinely ignore the fact that a particular statute resulted from legislative compromise among various interest groups, pick out a "purpose" that suited the Justices ideological proclivities (preventing discrimination [but not noting the countervailing interests of employers reflected in the statutory language], protecting the environment [but not noting the countervailing interest in business efficiency and profits], helping the poor [but not noting Congress's desire to limit administrative burdens on local government, and the cost to taxpayers], and so forth), declare that to be the sole, overarching purpose of the statute, and proceed to ignore statutory language and often common sense in interpreting the statute.

	[David Bernstein, May 29, 2007 at 8:53pm] Trackbacks Justice Ginsburg and the "Purpose" of Title VII: Dissenting today in Ledbetter v. Goodyear Tire & Rubber Co., Justice Ginsburg writes, "This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute's broad remedial purpose." The history of Title VII and its "purpose" is, at best, much more ambiguous than that. Title VII was modeled after state antidiscrimination laws enforced by Fair Employment Practice Commissions, which spread throughout the North and Midwest after WWII. The FEPCs focused on mediation between the aggrieved party and the allegedly discriminating employer, often lacked much in the way of enforcement power, and were widely perceived as largely ineffectual. Title VII built on various aspects of the FEPCs; the requirement of getting EEOC approval to file a suit, for example, built on the FEPC's agency-centered procedures. Civil rights advocates did win the right to sue with agency permission, but with damage caps and time limits. At the time of its passage, then, many thought that Title VII would turn out to be not much more consequential than the FEPCs had been. In fact, my impression is that the public accommodations provision of the 1964 Civil Rights Act was far more controversial than was Title VII, especially when advocates for the latter promised it would not interfere with union seniority schemes or mandate "reverse discrimination." Much to most people's surprise, however, civil rights advocates within the Justice Department turned Title VII into a powerful tool, by bringing large-scale class actions against employers, often on a disparate impact theory that was very far from the minds of Congress in 1964. Moreover, while at the time Title VII was thought to primarily be concerned with discrimination in hiring, plaintiffs' attorneys eventually realized there was more money, and a greater possibility of success, in filing cases involving discrimination in firing. All of this was nudged along by sympathetic courts, who consistently proclaimed, quite falsely, that Congress had intended Title VII to be a very broad, vigorous, remedial statute. Whatever one thinks of this outcome, there's no excuse for distorting the history of the statute. In fairness to Justice Ginsburg, Congress did endorse many of the innovations initiated by Justice and plaintiffs' attorneys in later legislation, such as the Civil Rights Act of 1991. [Update: But to the extent she is arguing that even unamended parts of Title VII should be interpreted broadly because the statute, in 1964, had a broad remedial purpose, that is a rather distorted view of the law's history. As Justice Ginsburg suggests, the current Congress might choose to adopt her interpretation of Title VII through new legislation, but that is hardly evidence that her interpretation is consistent with the scope and intent of the statute as written.] FURTHER UPDATE: I think it's a mistake to look at legislative "intent", which is easily manipulated post hoc. Rather, the issue is the "purpose" of Title VII, which can be easily gleaned from the text of the statute: to provide certain limited rights for individuals to sue for employment discrimination. The law's purported "broad remedial purpose" is contradicted by the requirement of EEOC approval to sue, but its application only to large employers, by damage caps, and so on. To the extent this isn't clear from the face of the statute, its historical relationship to the modest fair employment practice laws should make it clear. Congress has since broadened the statute somewhat, but not to the extent that one could reasonably argue that the law is intended to skew the balance drawn between employee and employer interests heavily in favor of the employees, as Justice Ginsburg's opinion suggests. I picked on Justice Ginsburg's opinion because its language, joined by three other Justices, recalls the excesses of the Warren and Burger Court. In those days, the Court would routinely ignore the fact that a particular statute resulted from legislative compromise among various interest groups, pick out a "purpose" that suited the Justices ideological proclivities (preventing discrimination [but not noting the countervailing interests of employers reflected in the statutory language], protecting the environment [but not noting the countervailing interest in business efficiency and profits], helping the poor [but not noting Congress's desire to limit administrative burdens on local government, and the cost to taxpayers], and so forth), declare that to be the sole, overarching purpose of the statute, and proceed to ignore statutory language and often common sense in interpreting the statute.