“We hold these truths to be self-evident … that all … are created equal … [with] certain unalienable Rights.”[1] This simple statement from the Declaration of Independence is at the heart of American democracy. Yet these words stand in stark contrast to the treatment of Black persons in the American colonies at the time they were written and in the United States for centuries thereafter. Although the nation’s policies and actions have not always lived up to this ideal of equality, it remains the core commitment that binds together Americans of all backgrounds and experiences. Our success as a nation depends on that commitment.
Sixty years ago, the nation took a bold step to advance this founding principle of equality by passing the Civil Rights Act of 1964 (the Act). The bill was remarkable not only in its breadth, encompassing public accommodations, employment, and education, among others, but because it laid the foundation for meaningful and robust enforcement.
In March 1964, as the Senate debated the Act, Dr. Martin Luther King, Jr. had predicted that “[w]hen the legislation becomes law, its vitality and power will depend as much on its implementation as on the strength of its declarations.” Those words have proven prescient. Since its passage, the Act’s enforcement by the federal government, civil rights organizations, and the private bar has helped transform the nation’s public spaces, workplaces, and educational institutions.
Title VII of the Act outlawed employment discrimination based on race, color, national origin, religion, and sex and created the U.S. Equal Employment Opportunity Commission (EEOC) to enforce these important protections. The EEOC’s experience enforcing this landmark law makes clear both the significant progress since the law’s enactment and the significant work that still remains if we are to fully realize its promise. In fiscal year 2023 alone, the EEOC resolved numerous claims of racial harassment and retaliation against Black workers. For instance, the agency recently obtained $1.2 million for Black workers and important workplace changes in EEOC v. The Whiting-Turner Contracting Company. The EEOC brought the case after its investigation found that Black construction workers endured being called “boy,” “m___ f___,” and “you,” by their white team leader. They were assigned the most physically difficult tasks while employed on a job site that was replete with racist graffiti, including the n-word and references to the Ku Klux Klan. When the workers complained, the company simply fired them. The 2023 Chair’s report makes clear that this was hardly an isolated example, detailing numerous similarly shameful instances of racial discrimination that EEOC’s investigations have uncovered in the industry.
EEOC cases from fiscal year 2023 span a host of industries, however, and involve racial slurs against a class of Black workers in a California nursing home; a makeshift noose, swastika graffiti, and racist language targeting Black workers at a California manufacturing plant; subjecting Black workers at a Louisiana restaurant to racially offensive and demeaning remarks and refusing to rehire them after pandemic-related layoffs; and the unlawful discharge of two Black managers based on race and retaliation at a Maryland warehouse.
Unquestionably, today’s America offers vastly more opportunities for Black persons than existed for most of our past. But the virulence and persistence of employment discrimination against Black Americans, and so many others as well, is sobering evidence of the urgent need for continued progress. We cannot afford to take the law’s protections for granted or ignore the current threat posed by attacks on efforts to expand equal opportunity, such as employer programs to promote diversity, equity, inclusion, and accessibility (DEIA). We must mark the Act’s 60th anniversary by taking concrete action to strengthen and protect this vital law.
First, monetary remedies under Title VII of the Act should be reexamined to ensure they are a meaningful deterrent to discrimination. Title VII’s compensatory and punitive damages for employment discrimination have remained frozen in time since the Act’s 1991 amendments. Employees who suffer even the most severe harassment or other employment discrimination find their recoveries for such damages capped at levels ranging from $50,000 to $300,000, depending on the size of the employer.[2] Remedies for discrimination should reflect the harm to the employee and must be substantial enough to deter future violations.
Second, we must clearly and forcefully reject the cynical attacks on employer DEIA programs. This issue is enormously important to the future of our country, the success of our economy, and the strength of our democracy. We must ensure that all of us can realize our full potential and contribute to the nation’s progress. While the ability to file suit to remedy job discrimination is essential, there is no substitute for proactively preventing discrimination from occurring in the first place. One of the most effective ways for employers to do that is to cultivate a culture of respect in the workplace and systematically examine employment practices and policies to remove barriers to equal opportunity and inclusion through well-crafted DEIA programs.
There has been significant confusion about workplace DEIA programs in the wake of the Supreme Court’s 2023 college admissions decision. The decision did not, however, address employer efforts to remedy the effects of past employment discrimination, foster diverse and inclusive workforces, or engage the talents of qualified workers from underserved communities. Unlike the college admissions programs considered by the Supreme Court, workplace DEIA programs typically “do not make or encourage decisions to be made on the basis of race or another protected characteristic.”[3] Moreover, Title VII permits employers to proactively evaluate their workforces to identify and remove barriers to hiring, retention, or inclusion, and to take action to prevent discrimination in the first instance. When structured and implemented properly, DEIA initiatives, such as efforts to expand applicant pools or identify barriers to opportunity, are consistent with federal antidiscrimination laws and can benefit employers and workers of all backgrounds by ensuring equal opportunity to participate, contribute, and succeed in the workforce.
Today, our nation is at a crossroads with respect to civil rights. Unless we move forward to finally fulfill America’s promise of equal opportunity, we risk jeopardizing the progress that has made this a stronger, better, and more inclusive nation. America has always been most successful when we worked together to expand opportunity. This 60th anniversary of the Civil Rights Act is the perfect time to redouble our efforts toward full and equal participation for all.
[1] Declaration of Independence para. 2 (U.S. 1776).
[2] This is also a significant problem for claims of discrimination under the Americans with Disabilities Act of 1990, the Rehabilitation Act of 1973, the Genetic Information Nondiscrimination Act of 2008, and the Pregnant Workers Fairness Act of 2022, which incorporate the same limits on compensatory and punitive damages as Title VII.
[3]N.Y. State Bar Ass’n, Task Force on Advancing Diversity, Report and Recommendation 57 (September 20, 2023), https://nysba.org/app/uploads/2023/09/NYSBA-Report-on-Advancing-Diversity-9.20.23-FINAL-with-cover.pdf.
