Contributed by -

Professor D. Wendy Greene

Professor Drexel University, Thomas R. Kline School of Law

Imagine having to ride an elevator in your workplace where you see etched in the walls the “N” word and a swastika. Imagine going to the bathroom at your workplace only to be met with an image of nooses, or even an actual noose hanging from a bathroom stall. Imagine being a Black male worker frequently called “boy” by white co-workers in a subordinating and taunting manner—despite your objections. Imagine being a Black worker who is directed by a supervisor to cut off your hair naturally flowing from your scalp in the form of locs or lose the job you are performing excellently. Imagine being harassed by your co-workers and supervisors because they misperceive your racial or ethnic identity. Imagine reporting any of the above incidences of racial discrimination and not being protected against resulting retaliation by an employer. 

These incidences of racial discrimination and retaliation are occurring in 21st century workplaces, yet they do not violate Title VII of the 1964 Civil Rights Act according to federal courts.

This year, we celebrate the 60th anniversary of the passage of the 1964 Civil Rights Act. At the height of the 20th century civil rights movement, Congress enacted several pieces of legislation like the Voting Rights Act of 1965 and the Civil Rights Act of 1964, to address longstanding racial exclusion, subordination, and segregation in spheres such as employment, housing, voting, education, and public accommodations. Specifically, with Title VII of the 1964 Civil Rights Act, Congress sought to remove explicit and arbitrary barriers to Black Americans’ access to employment opportunities and their corresponding economic security, exercise of freedom, and enjoyment of equality. Title VII also afforded covered workers legal protection if retaliated against for opposing discrimination or participating in processes challenging employment policies, practices, and decisions Title VII prohibits. 

In 2024, American workers likely take this federal statutory protection against workplace discrimination on the basis of race, color, national origin, sex, and religion for granted. Most contemporary employers purport to be “equal opportunity employers” that do not engage in or tolerate workplace discrimination while instituting processes for reporting and investigating such conduct. Furthermore, we typically no longer see “whites only” or “Blacks need not apply” job postings; Title VII is explicit in making these advertisements unlawful. However, a national law declaring racial, color, national origin, sex, and religious discrimination unlawful in private and public employment was seismic. 

Since before the founding of this country we call the United States, these forms of employment discrimination were lawful, customary, and in many instances legally required. Though Title VII and the Civil Rights Act came to fruition in 1964, this civil rights law is the product of hard-fought battles, strategic campaigning, organizing, protests, violent resistance, and bloodshed—public and private—for decades if not centuries preceding its passage. Consequently, this revolutionary civil rights statute is also the culmination of compromise in the face of political and social resistance to not only federal regulation over private decision-making but also a national decree to dismantle racial caste in America’s workplaces and other aspects of public life. 

As we reflect upon the efficacy of Title VII to combat racial discrimination in the employment sector, the real consequences of compromise and resistance become clearer when evaluating federal courts’ interpretation of Title VII over the course of 60 years. Alongside human rights enforcement agencies, administrative law judges, and state court judges, federal courts are charged with interpreting federal civil rights legislation like Title VII. 

When Congress has not expressly enumerated what is unlawful, these interpretive bodies are responsible for deciding whether challenged workplace conduct, decisions, policies, and practices constitute impermissible discrimination Title VII prohibits. In other words, federal courts determine which workplace conduct violates Title VII and as a result, employers are obligated to redress through remedies like eliminating policies and practices, reinstating employees, and financially compensating workers for economic and emotional harm. Following Title VII’s enactment, numerous federal courts, including the United States Supreme Court, narrowly interpreted the statute’s protections against racial discrimination. Federal courts have done so by creating and reinforcing restrictive legal doctrines to guide their legal determinations: rules that are not supported by the plain language, legislative history, or Congressional purpose. These “judicially created doctrines” undermine the statutory rights of workers of color not only to be free from racial discrimination in hiring, promotion, and compensation decisions but also to experience equal, integrated, dignified, and humane work conditions. 

In effect, many “judicially created doctrines” adopted in Title VII cases preserve racial subordination, segregation, exclusion, and inequality in contemporary workplaces—per the force of law. For example, federal judges have interpreted race-conscious employment practices designed to ameliorate racial exclusion and hierarchy in workplaces as the legal (and experiential) equivalent to “whites only” signs aimed to perpetuate racial caste and its harms. 11 years after its passage, the United States Supreme Court acknowledged that Title VII was enacted to serve as a catalyst for "employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country's history." Employers are often disincentivized to pursue this conscientious course of action considering judicial decisions that are at best dismissive of this express purpose of Title VII, and are at worst, demonstrative of express recalcitrance.

The current movements to extend recent Supreme Court decisions limiting the ameliorative use of race in college admissions to the employment context intensify this discouragement and aid in maintaining racial caste in 21 century workplaces. Simultaneously, it is commonplace for federal courts to rule that workplace policies, decisions and conduct targeting workers of color—which are clearly motivated by pejorative racial stereotypes, animus, and prejudice—do not violate Title VII’s prohibitions against intentional race discrimination. 

Indeed, a federal appellate court and a federal district court overturned a judgment and jury award in favor of two Black male workers, reasoning that evidence of a white male supervisor calling Black male workers, “boy,” in a subordinating manner was a “stray remark” and irrelevant to their successful claims that racial bias motivated the supervisor’s refusal to promote them despite being qualified for the positions. According to these federal courts, a supervisor’s calling Black men boy— a word commonly used and perceived as a racial slur—did not constitute relevant evidence in Title VII cases of intentional race discrimination brought by Black male workers. They needed to bring forth evidence that their white male supervisor used a racial qualifier in conjunction with the term, “boy,” to substantiate intentional race discrimination was at play in the promotional decision. In other words, only if Black male workers produce evidence that a supervisor called them “Black boy” in a subordinating manner will protection against intentional race discrimination under Title VII be justified. 

Increasingly, federal courts are also imposing unthinkable evidentiary requirements upon workers to be protected against retaliation under Title VII. Therefore, continued statutory interpretation in this vein will render Title VII impotent to redress racial discrimination and inequality workers of color experience in the 21st century and beyond. Without strategic, long-range intervention, Title VII can turn into a symbolic proclamation of unenforceable rights for workers of color rather than a substantive guarantee of rights to be free from racial discrimination and retaliation at the hands of modern employers.

The 1964 Civil Rights Act was key to a radical re-imagining of and notable transformation within American society. Title VII continues to be a vital piece of civil rights legislation which has helped to transform the landscape of employment opportunity for workers of color, racial demography in American workplaces, and organizational policies demanding racial exclusion to norms advancing racial inclusion. However, like any piece of civil rights legislation, Title VII is both impactful and imperfect. This duality is underscored when assessing the positive impact of Title VII in tandem with the negative effects of restrictive Title VII jurisprudence on workers’ lives. 

As we commemorate the 60th anniversary of Title VII, it is incumbent upon Congress and racial justice advocates to not only make this dual acknowledgment but also take responsive and visionary action. This collaborative action consists of civil rights law, civil rights policy, and civil rights movements that clearly attend to myriad forms of racial discrimination workers of color experience daily. Contemporary civil rights law, policy and movements must also unequivocally seek to ameliorate the complex reality of racial caste in American workplaces. Like with Title VII of the 1964 Civil Rights Act, 21st century civil rights laws, policies, and movements must be substantive and sustainable—not symbolic—to bring about revolutionary realities for present as well as future generations of workers of color and for American workplaces.

*Professor of Law and Director of the Center for Law, Policy, and Social Action at Drexel University Thomas R. Kline School of Law. Professor Greene is an internationally recognized anti-discrimination law scholar and activist whose award-winning thought-leadership has catalyzed and informed groundbreaking civil rights law and policy in the United States and abroad. Founder of #FreeTheHair movement, she is a legal architect of the federal C.R.O.W.N. Act and a legal expert for seminal civil rights cases, legislation, and policy.

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