Title VII of the civil rights act after 50 years: proceedings of the new york university 67th annual conference on labor



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56 Photograph of President Johnson signing the Civil Rights Act as Senators and Civil Rights Leaders Look On, Jul. 2, 1964, in Risen, supra note 12; See President Johnson Signs Civil Rights Act of 1964, C-span, http://www.c-span.org/video/?300956-1/civil-rights-act-50th-anniversary (signing the bill into law, President Johnson gives nearly 100 pens as a keepsake to such individuals as Hubert H. Humphrey, Dr. Martin Luther King, Jr., Everett Dirksen, the Kennedy family, and the Attorney General Robert Kennedy) (last visited Jul. 26, 2015).

57 MLK must have held close the pain and hardship necessarily lay ahead for civil rights workers Chaney, Schwerner and Goodman were missing in Mississippi and presumed dead. Jason Sokol, The Power Broker’s Other Voice, Slate, http://www.slate.com/articles/arts/books/2011/06/the_power_brokers_other_voice.html (discussing the disappearance of James Chaney, Andrew Goodman, and Mickey Schwerner in Mississippi between the end of the Senate debate of the Civil Rights Act on June 10, 1964 and the date President Johnson signed the bill into law and analyzing tape recordings of his conversations to argue that though he signed the greatest civil rights legislation ever, Johnson remained suspicious of the movement and foremost concerned with his political position and power) (last visited Jul. 17, 2015).

58 Photograph of President Johnson speaking to a nationwide television audience from the White House just before signing the Civil Rights Act of 1964 (Jul. 2, 1964) National Archives (LBJ Library), in Ted Gittinger and Allen Fisher, Prologue Magazine (Summer 2004 Vol. 36, No. 2) available at http://www.archives.gov/publications/prologue/2004/summer/civil-rights-act-2.html (last visited Jul. 26, 2015). In a wide perspective of the photograph there is at least one identifiable woman present– Lady Bird Johnson, the First Lady. Id.

59 See, e.g., Civil Rights Act of 1964 §703(a), 42 U.S.C. §2000e-2 (2012). But see Equal Pay Act of 1963, 29 U.S.C. § 206(d) (2012). The absence of women participants at the signing of the Civil Rights Act of 1964 does not appear to indicate there was not growing support during this era for enhanced workplace equality for women. Rather, I would suggest that women as a class were not the immediate focus of the Act in 1964.

60 Photograph of President Obama signing into law the Lily Ledbetter Fair Pay Act, White House Blog, Apr. 14, 2015, 8:02 PM, https://www.whitehouse.gov/blog/2015/04/14/day-history-equal-pay-trailblazer-lilly-ledbetter-turns-77 (hereinafter Lily Ledbetter Act Photograph); See also From the Archives: President Obama Signs the Lilly Ledbetter Fair Pay Act, White House Blog, Jan. 30, 2012, 1:41 PM, https://www.whitehouse.gov/blog/2012/01/30/archives-president-obama-signs-lilly-ledbetter-fair-pay-act.

61 See Lily Ledbetter Act Photograph, supra note 60.

62 See Risen, supra note 12, at 4.

63 However, the bi-partisanship frayed with Lily Ledbettter. On January 22, 2009, Lily Ledbetter Fair Pay Act passed with a 61-36 Senate vote, including all Democrats present and five Republicans (including all four women Republicans) and a 250-177 House vote. See 155 Cong. Red. H546-56 (Jan. 27, 2009). Lani Guinier, Courting the People: Demosprudence and the Law/Politics Divide, 89, n.21 B.U. L. Rev. 539, 561 (2009) (The initial bill passed the House in Jul. 2007, but never came up for a vote in the Senate). See also Lori Montgomery, Senate Republicans Block Pay Disparity Measure, Wash. Post, Apr. 24, 2008, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/04/23/AR2008042301553.html (arguing that all but six Senate Republicans voted to block the bill, as a politically aggressive and partisan act against Senators Hillary Clinton and Barack Obama, both campaigning Democratic presidential candidates at the time for the upcoming 2008 election).

64 See Remarks of President George Bush at the Signing of the Americans with Disabilities Act, EEOC (last visited Jul. 17, 2015) http://www.eeoc.gov/eeoc/history/35th/videos/ada_signing_text.html. The ADA of 1990 was resolved and passed in the Senate on Jul. 13, 1990 with a 91-6 vote. 136 Cong. Rec. S9695 (daily ed. Jul. 13, 1990). A true act of bipartisanship, the ADA was co-sponsored by Sen. Harkin, a Democrat from Iowa, who made a heartfelt speech on the Senate floor, first addressing his brother Frank who is deaf, in American Sign Language. Senator Harkin Delivers Floor Speech in American Sign Language Upon Passage of the ADA, YouTube, Apr. 5, 2013, available at https://www.youtube.com/watch?v=BomPo6fPOOo; Steven A. Holmes, Rights Bill for Disabled is Sent to Bush, NYTimes, Jul. 14, 1990, available at http://www.nytimes.com/1990/07/14/us/rights-bill-for-disabled-is-sent-to-bush.html.

65 See Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999); Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999); Murphy v. United Parcel Serv., Inc., 527 U.S. 516 (1999) [hereinafter The Sutton Trilogy]. See also Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) With the Supreme Court rulings in The Sutton Trilogy, the impact was to essentially eviscerate the statute’s protection. Chai R. Feldblum, Definition of Disability Under Federal Anti-Discrimination Law: What Happened? Why? And What Can We Do About It?, 21 Berkeley J. Emp. & Lab. L. 91, 156 (2000). Feldblum observed that “Part of what is so remarkable and disturbing about cases such as Robinson is the disjuncture between the type of people that advocates of the ADA presumed would be covered under the law, and the practical reality of the protection currently afforded by the law.” Id. Feldblum herself was a key supporter and contributor to both the ADA and the ADAAA, testifying on behalf of both pieces of legislation in front of Congress. See, e.g., Chai R. Feldblum, The Americans with Disabilities Act and the ADA Amendments Act of 2008: Hearing before the S. Comm. on Health, Education, Labor & Pensions, 110th Cong., Jul. 15, 2008 (Statement of Chai R. Feldblum) available at http://works.bepress.com/chai_feldblum/8. Paul Miller, a University of Washington Professor of Law, an expert in disability law, a commissioner at the EEOC from 1994-2004 and a principal champion of the ADA and GINA, also quickly recognized the shortcomings of the statute. He noted as early at 2000 that "advances in genetic research and technology portend tremendous benefits for humankind in medicine and science, [but] adequate protections must be in place to insure that such technology will not be used for the wrong reasons." Paul Steven Miller, Is There A Pink Slip in My Genes? Genetic Discrimination in the Workplace, 3 J. Health Care L. & Pol'y 225, 265 (2000). Miller led the way as a lawyer, scholar, lobbyist and humanist to greater protection from discriminatory use of genetic information and ultimately saw the Genetic Information Nondiscrimination Act of 2008 signed into law. See Michael Waterstone, Paul Steven Miller: A Life of Influence, 64 J. Legal Educ. 492 (2015). See also Kevin Barry, Toward Universalism: What the ADA Amendments Act of 2008 Can and Can’t do for Disability Rights, 31 Berkeley J. Emp. & Lab. L. 203 (2010) (arguing that the 2008 expansion of the definition of disability under the ADAAA, a unique bipartisan resolution, provides near universal coverage, thus creating more positive relationships with ourselves and each other). Furthermore, we must consider that the longer arc of civil rights law in American history has frequently been subject to the same cycle of broad and idealistic congressional laws, later subject to narrow and limiting interpretation by the Courts.

66 The bill was reintroduced in 2008 as a bi-partisan effort of Republican Congressman Jim Sensenbrunner (Wisconsin) and then Democrat, House Majority Leader Steny Hoyer (Maryland). Congressman Jim Sensenbrenner, Press Release and Statements, Sensenbrenner Statement on ADA Bill, Sept. 17, 2008 http://sensenbrenner.house.gov/news/documentsingle.aspx?DocumentID=102681 (last visited Jul. 26, 2015). See ADA Amendments Act of 2008 (ADAAA), Pub. L. 110-325, 122 Stat. 3553 (2008) (codified at 42 U.S.C. §12101) (explicitly rejecting Sutton and Toyata Motor Manufacturing in the stated Purposes of the amendment). On September 25, 2008 the ADAAA was signed into law. Id. On passing the ADAAA, Senators Hoyer and Sensenbrunner stated they were proud of the “alliance of business and disability representatives who worked together… throughout the bill’s legislative process.”154 Cong. Rec. H8294 (daily ed. Sept. 17, 2008) (Hoyer-Sensenbrenner Statement). In the statement, they thanked the communities of disability organizations, members of the business community lawyers, and legal scholars, former members of congress and an extensive list of individuals. See 154 Cong. Rec. H8295.

67 The statute prohibits an employer from either:

1. fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or



2. to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Civil Rights Act of 1964, Pub. L. No. 88-352, Title VII §703(a) (codified as amended at 42 U.S.C. §2000e-2 (2012)).

68See generally Robert Belton, The Crusade for Equality in the Workplace (2014). See U.S. E.E.O.C., Testimony of David Cashdan, Celebrating the 40th Anniversary of Title VII, June 22, 2004, available at http://www.eeoc.gov/eeoc/history/40th/panel/40thpanels/panel1/transcript.html; David Cashdan, The First Five Years, Cashdan Kane available at http://www.cashdankane.com/the-first-five-years.html.

69 William L. (Bill) Robinson, one of the pioneer NAACP litigators and General Counsel of the EEOC, spoke at the 40th Anniversary Celebration, stating that at the outset, expectations for Title VII were “extremely high” and today we think very little of all that has been accomplished since its passage. U.S. E.E.O.C., Testimony of William Robinson, Celebrating the 40th Anniversary of Title VII, Jun. 22, 2004, available at http://www.eeoc.gov/eeoc/history/40th/panel/40thpanels/panel1/transcript.html (last visited Jul. 24, 2015). Robinson noted that the language of the statute itself presented immediate procedural problems for the charging party, as deadlines for filing a charge were tight and the EEOC had to issue cause, or the charge likely wouldn't be allowed to proceed to court. Id. Most problematic of all, the EEOC, the agency entrusted with the primary responsibility for enforcing the statute, didn't have enforcement authority. Id. He observed the court’s willingness to render “receptive, sympathetic, courageous, creative decisions” played a vital role to early enforcement efforts. Id. See National Organization of Women (NOW), Honoring our Founders and Pioneers, (last visited Jul. 24, 2015) http://now.org/about/history/honoring-our-founders-pioneers/ (recalling that Sonia Pressman Fuentes – the first woman attorney in the EEOC Office of the General Counsel – expressed to Betty Friedan – early second-wave-feminist activist – an idea that women needed to organize to fight for their rights, just like the NAACP fought for African American’s rights).

70 Memorandum from Sonia Fuentes on Use of Statistics in Title VII Proceedings (May, 31, 1966) (on file with Schlesinger Library, Radcliffe Institute, Harvard University and the EEOC’s Office of General Counsel). In an attempt to give meaning to the sparse Title VII protections, Fuentes looked to constitutional cases and principles. Id. She argued statistical evidence could be used in regard to Title VII  as it had been in cases regarding “voter registration, jury selection, and teacher pay cases.” Id. at 4. These principles were argued by the EEOC in many cases most notably in Griggs v. Duke Power. Brief for United States as Amicus Curiae at 4, Griggs v. Duke Power Co., 401 U.S. 424, (1970) (No. 124). Despite the EEOC’s reliance on constitutional analysis to fill in the new statute’s blank spaces, the Supreme Court by the mid-seventies balked at applying analysis drawn from Title VII analysis to constitutional questions. See Washington v. Davis, 426 U.S. 229 (1976).

71See Belton, supra note 69; Civil Rights Act of 1991, Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074 (codified as amended in 42 U.S.C. § 2000e-2(k)(1)(A)(i)(2006)).

72 Griggs, 401 U.S. at 853 (noting that “[t]he Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation”). Subsequent to Supreme Court’s decision in Griggs v. Duke Power, the disparate impact theory greatly expanded the possibility to eradicate discriminatory practices against African Americans, as well as women, Latinos/as, Asian Americans and Native Americans. Belton, supra note 69, at 3. Richard Belton has stated that this class-based approach transformed not only enforcement practices, but also discussions and meaning of the word equality. Id. at 3, 29. These advancements created a viable disparate impact theory, including challenging subjective criteria, use of statistics as proof, burden shifting, and legitimate testing criteria, legally mandated the upheaval of the social paradigm. Id. at 189-207. However, by 1989, , the Supreme Court “massacred” the disparate impact theory in a series of cases. Id. at 282. In a pair of cases, Watson v. Fort Worth Bank and Trust Co. and Wards Cove Packing Company, Inc. v. Atonio, the Supreme Court effectively jettisoned their prior ruling in Griggs and its hard-fought years of jurisprudence. Id. at 282-286. In Ward’s Cove, the Court, without expressly overruling Griggs, significantly elevated the requirements for plaintiffs, essentially retaining the shell of disparate impact theory and discarding the substantial protections it promised to women and minorities. Id. at 286. In 1991, Congress corrected the Court’s decision in Ward’s Cove, codifying the disparate impact theory and setting a clarified rule for damages. Id. at 310-311.

73 U.S. E.E.O.C., Written Testimony of Honorable Cari M. Dominguez Former Chair, EEOC Senior Vice President and Chief Talent and Diversity Officer Loma Linda University Health, Jul. 1, 2015, available at http://www.eeoc.gov/eeoc/meetings/7-1-15/dominguez.cfm.

74 See 110 Cong. Rec. 2577 (1964) (statement of Rep. Smith). See also Cary Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307, 1318 (2012) (noting that Smith's amendment was discussed for only a few hours, and thereafter legal commentators, judges, lawyers and scholars characterized his intervention as “a last-ditch, if ultimately unsuccessful, attempt to derail a piece of legislation to which he was fiercely opposed”).

75 But see Franklin, supra note 74; Rachel Osterman, Origins of A Myth: Why Courts, Scholars, and the Public Think Title VII's Ban on Sex Discrimination Was an Accident, 20 Yale J.L. & Feminism 409, 416 (2009).

76 Franklin D. Roosevelt, Jr. was the son and namesake of the former president. Franklin D. Roosevelt, Jr. First Chairman of the EEOC, EEOC 35th Anniversary (last visited Jul. 15, 2015) http://www.eeoc.gov/eeoc/history/35th/bios/roosevelt.html. Significantly his mother, Eleanor Roosevelt is well-regarded as a founding supporter of woman’s rights and instrumental drafter of the Universal Declaration of Human Rights. Biography: Eleanor Roosevelt’s Life, PBS (last visited Jul. 15, 2015) http://www.pbs.org/wgbh/americanexperience/features/biography/eleanor-biography/.

77 Osterman, supra note 75, at 416.

78 See id. at 409. See also Robert C. Bird, More Than A Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, 3 Wm. & Mary J. Women & L. 137, 138 (1997) (arguing that legal commentators, who have concluded that Congress amended Title VII's list of prohibited discriminatory bases to include sex discrimination as a joke, misconstrues history).

79 Osterman, supra note 75, at 409. See also Brach, supra note 1, at 232 (noting that eleven of twelve women representatives supported Howard Smith’s inclusion of “sex” in the face of laughter by fellow male representatives during debate).

80 Osterman, supra note 75, at 414. See Franklin, supra note 74, at 1307. By contrast, the overt and thinly coded sexism of many of the Civil Rights Act’s strongest supporters is (I hope) shocking to us in the 21st Century. Emmanuel Cellar, a liberal Democrat from New York was the leader of a bipartisan coalition to pass the Civil Rights Bill, but simultaneously, as chair of House Judiciary Committee, he prevented the Equal Rights Amendment (ERA) from reaching the house floor on more than one occasion. Robert C. Bird, More Than A Congressional Joke: A Fresh Look at the Legislative History of Sex Discrimination of the 1964 Civil Rights Act, 3 Wm. & Mary J. Women & L. 137, 161 & n. 36 (1997). See also 110 Cong. Rec. H2577 (1964) (Remarks of Rep. Cellars) (stating, as an opening joke, that he has experienced nearly 50 years of harmonious marriage with his wife because he “usually [has] the last two words. . . “yes, dear”).

81 Osterman, supra note 75, at 414.

82 Id.

83 Id. at 417 (noting early EEOC leadership promoted and publicized the “fluke” narrative to slow the enforcement of Title VII’s sex provision).

84 U.S. E.E.O.C., History, Shaping Employment Discrimination Law, (last visited Jul. 17, 2015) http://www.eeoc.gov/eeoc/history/35th/1965-71/shaping.html (noting 33.5% of all charges in 1966 were for discrimination on the basis of sex); See David J. Garrow, Toward A Definitive History of Griggs v. Duke Power Co., 67 Vand. L. Rev. 197, 204 (2014) (stating that the main provision would not take effect until after one full calendar year, thus “equal employment enforcement considerations took a decided back seat [to] implementation of Title II's prohibition of racial discrimination in public accommodations”). In 1965, when Title VII did take effect (with the creation of the EEOC), the Legal Defense Fund with the NAACP, filed more than fifty complaints alleging racially discriminatory employment practices within the first four weeks. Id. at 205.

85 Osterman, supra note 75, at 417.

86 Id.

87 Id.

88 Franklin, supra note 74, at 1342. See also Louis Menand, The Sex Amendment, New Yorker, Jul. 21, 2014, available at http://www.newyorker.com/magazine/2014/07/21/sex-amendment (reporting that immediately NOW sought a writ of mandamus against the E.E.O.C., compelling it to enforce Title VII, as it “was the only statutory weapon the women’s movement had”). See generally Sonia Pressman Fuentes, Eat First – You Don't Know What They'll Give You (1999).

89 Franklin, supra note 74, at 1350-51 (stating that Commissioner Hernandez issued a memo pressing the EEOC to denounce airline policies of hiring only young, single and female as flight attendants, and when the EEOC eventually agreed with Hernandez in a 1966 ruling, a federal court enjoined the EEOC from releasing the ruling). See The Civil Rights Act @ 50: The Pioneering Role of Flight Attendants in Fighting Sex Discrimination, Youtube, 57:00 minutes, Oct. 23, 2014, available at https://www.youtube.com/watch?v=cwmNip_Ua_Y (Sonia Fuentes) (stating “I joined the EEOC three months after they commenced operations. . . most [employees] had joined the EEOC to fight employment discrimination based on race or color, and they did not want the EEOC’s resources diverted to issues of gender discrimination and furthermore they did not know how to interpret the sex discrimination prohibitions of Title VII which raise more difficult questions. . . in short order, I became the EEOC staffer who spoke out about the need to enforce the sex pro of the act, and my boss took to calling me a “sex maniac”). See also NOW, Honoring Our Founders & Pioneers, http://now.org/about/history/honoring-our-founders-pioneers/ (last visited Jul. 17, 2015).

90 NOW, Founding, Jul. 2006, available at http://now.org/about/history/founding-2/ (stating that both commissioners, [Aileen Hernandez and Robert Graham] and EEOC attorney Sonia Fuentes joined to support the creation of NOW in 1966).

91See NOW, 1966 Statement of Purpose, http://now.org/about/history/statement-of-purpose/.

92 Id.

93 Notably, in 1971, the Court first recognized sex stereotyping as sex discrimination in Phillips v. Martin Marietta. 400 U.S. 542 (1971). However, it was not until 1986 in Meritor Sav. Bank, FSB v. Vinson, that the Court ruled and affirmed the EEOC’s Guidelines, stating “that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment.” 477 U.S. 57, 63 (1986). Franklin, supra note 74, at 1356. See also Osterman, supra note 75, at 417 (quoting the EEOC’s new guidelines, that “the Commission has proceeded with caution. . . [and that the Commission resisted] an overly literal interpretation of the prohibition [against sex discrimination]”). Flight Attendants who brought a series of sex discrimination charges to the EEOC were instrumental in the early development of sex discrimination. See The Civil Rights Act @ 50: The Pioneering Role of Flight Attendants in Fighting Sex Discrimination, Youtube, 58:00 minutes, Oct. 23, 2014, available at https://www.youtube.com/watch?v=cwmNip_Ua_Y (Testimony of Sonia Fuentes) (recalling that when the EEOC decided to consider the “flight attendant” cases, and concluded that the airlines practices violated Title VII, she was assigned the task of writing the lead decision, for which the then Vice Chairman of the EEOC, called her boss, Charlie Dunken, withdraw the assignment from her, because she was “prejudiced,” “in favor of women’s rights”). See id. (including testimony of plaintiffs, Mary Celeste Lansdale Brodigan, plaintiff in Lansdale v. United Air Lines, Inc.; Mary Pat Laffey-Inman,plaintiff in Laffey v. Northwest Airlines, Inc.). Interestingly, concern about airline policies of hiring single, but not married women harks all the way back to legislative debate about adding the provision of “sex” to Title VII. 155 Cong. Rec. 2578 (Feb. 8, 1964) (Remarks of Sen. Bass) (supporting the addition of “sex,” specifically stating he just got off of an airplane and presenting the hypothetical of discrimination against the married woman stewardess).

94 See, e.g., Meritor, 477 U.S. at 63. The early history of the Act and Commission is fraught with what looks like interest-group lobbying for significance, but developments with respect to one prohibited basis are often used to address discrimination under another. The developments are never contained in their silo. In Meritor, the push to invigorate the prohibition against sex discrimination resulted in a victory for an African-American woman, and the hostile work environment theory has since been used to address race, religion or national origin discrimination.

95 See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (holding that the statutory language “because of sex” includes same-sex sexual harassment). Justice Scalia in a momentous opinion, reignited the Magna Carta spirit stating,
[w]e see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion]. . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.
Id. at 79-80. See also E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 456 (5th Cir. 2013) (holding that a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping, in effect, marrying Price Waterhouse and Oncale) See, e.g., id. at n. 7.

96 Corning Glass Works v. Brennan, 417 U.S. 188 (1974) (holding that the employer violated the EPA by paying male night-shift inspectors at a higher base rate than female day-shift inspectors). Note, when the practice was adopted, around 1925 to 1930, state law prohibited women from working at night. This differential “became illegal once Congress enacted into law the principle of “equal pay for equal work.” See also County of Washington v. Gunther, 452 U.S. 161 (1981); King v. Acosta Sales & Mktg., Inc., 678 F.3d 470 (7th Cir. 2012).

97 See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

98 See, e.g., E.E.O.C. v. Boh Bros. Const. Co., 731 F.3d 444, 456 (5th Cir. 2013).

99 Foxx, Decision No. 0120133080, at 6 (E.E.O.C. Jul. 12, 2015) (ruling that, when “a complainant alleges that an that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account”). See also, Macy v. Holder, No. 0120120821, 2012 WL 1435995 (E.E.O.C. Apr. 20, 2012) (the Commission ruled that discrimination against employees because they are transgender, because of their gender identity, and/or because they have transitioned (or intend to transition) is discrimination because of sex in violation of Title VII). Following Macy, the Commission in December 2012 approved the Strategic Enforcement Plan specifically designated LGBT discrimination (under Title VII’s sex discrimination provisions) as an emerging and developing issue priority. See Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004); Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008); Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII, EEOC (last visited Jul. 20, 2015) http://www1.eeoc.gov//eeoc/newsroom/wysk/lgbt_examples_decisions.cfm?renderforprint=1; William N. Eskridge, Jr., Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive, 57 UCLA L. Rev. 1333, 1345 (2010) (mapping the history of discrimination and understanding of LGBT individuals and noting they were “[p]rofoundly inspired by the African American civil rights movement, these Americans saw the natural law model as a product of prejudice and stereotypes that denied women and minorities equal treatment”).

100 In General Electric Co. v. Gilbert, the Court found that a disability plan that covered all conditions except pregnancy was not discrimination against women because of sex. 429 U.S. 125 (1976). Pregnancy Discrimination Act (PDA) Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified as amended at 42 U.S.C. §2000e (2012); 123 Cong. Rec. 29664 (Sept. 16, 1977) (Senate votes 75-11 to pass the PDA). See Newport News Shipbuilding & Dry Dock Co. v. E.E.O.C., 462 U.S. 669, 679-680 (1983) n. 17. The Court in Newport News cited to Representative Hawkins’ logic that “it seems only commonsense, that since only women can become pregnant, discrimination against pregnant people is necessarily discrimination against women, and that forbidding discrimination based on sex therefore clearly forbids discrimination based on pregnancy.” Id; See 123 Cong. Rec.(Extensions of Remarks) 10581-3 (Apr. 5, 1977). The Court also noted, inter alia, Senator Williams’ remarked that “this bill is simply corrective legislation, designed to restore the law with respect to pregnant women employees to the point where it was last year, before the Supreme Court's decision in Gilbert. . .” Newport News, 462 U.S. at 679-680, n. 17. See also 123 Cong. Rec. 29387 (1977).

101 In a well-known and often-cited law review article, Jane Crow, Pauli Murray and Mary O. Eastwood, argued that antifeminism and racism are parallels that may illuminate how to interpret the law to better protect women from discrimination. Pauli Murray & Mary O. Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 Geo. Wash. L. Rev. 232, 232 (1965).

102 Amended in 1972, section 701 (j) “‘religion’ includes…observance… practice…and…belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, § 2, 86 Stat. 103 (codified as amended at 42 U.S.C. §2000e(j) (1994)). See Debbie N. Kaminer, Title VII's Failure to Provide Meaningful and Consistent Protection of Religious Employees: Proposals for an Amendment, 21 Berkeley J. Emp. & Lab. L. 575, 580 (2000) (arguing Congress intended § 701(j) to guarantee a higher level of accommodation than the Supreme Court has provided, and a congressional amendment is necessary because the statutory language has failed to provide guidance to employers and protection to employees).

103 In one of the first cases to apply the religious discrimination protection, in Dewey v. Reynolds the Supreme Court, in an equally divided court, affirmed the Sixth Circuit holding that there was no burden on an employer to uphold a duty to accommodate an employee’s religious beliefs. 402 U.S. 689 (1971) (affirming in a 4-4 split decision per curiam). Congress thereafter clarified the statute, defining “religious” broadly. Id. See 118 Cong. Rec. 705 (1972).

104Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977) (ruling, in absence of a clear statutory definition of a reasonable accommodation, that requiring employer to “bear more than a de minimis cost” is an undue hardship and an unreasonable accommodation). In 1978, Commission conducted public hearings on religious discrimination in New York City, Milwaukee, and Los Angeles in order to respond to the concerns raised by Hardison. U.S. E.E.O.C., Guidelines On Discrimination Because Of Religion 29 C.F.R. Part 1605 (Jul. 1, 2011), available at http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1605.xml (raising concerns about the extent of the accommodation under Hardison, practices not being accommodated, and employer’s anticipatory concerns about business hardship with no or little actual experience of hardship).

105 See Jennifer Ann Drobac & Jill L. Wesley, Religion and Employment Antidiscrimination Law: Past, Present, and Post Hosanna-Tabor, 69 N.Y.U. Ann. Surv. Am. L. 761, 785 (2014)

106 See Brief for Petitioner at 5-6, E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015).

107 Id. at 4-5.

108 Id. at 6-7.

109 E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 798 F. Supp. 2d 1272, 1283 (N.D. Okla. 2011) rev'd and remanded, 731 F.3d 1106 (10th Cir. 2013) rev'd and remanded, 135 S. Ct. 2028 (2015).

110 Id.

111 Abercrombie, 135 S. Ct. at 2033 (ruling if the applicant actually requires an accommodation of that religious practice, and the employer's desire to avoid the prospective accommodation is a motivating factor in its decision, the employer violates Title VII.)

112 Id. at 2033. Only Justice Clarence Thomas dissented, explaining that he would have found that the store’s Look Policy did not constitute intentional religious discrimination because the policy applies to all employees, not just Muslims. Id. at 2037.

113 Richard Darby, Photograph of Helen Chavez, Cesar Chavez and Robert F. Kennedy, Wayne State University, Walter P. Reuther Library, posted Jul. 24, 2008, (captioned “On March 10, 1968, Cesar Chavez breaks his twenty-five-day fast by accepting bread from Senator Robert Kennedy, Delano, California),” available at http://reuther.wayne.edu/node/171 (last visited Jul. 26, 2015). See Nathan Heller, Hunger Artist: How Cesar Chavez Disserved His Dream, New Yorker, Apr. 14, 2014 (hereinafter Heller), available at http://www.newyorker.com/magazine/2014/04/14/hunger-artist-2 (last visited Jul. 26, 2015).

114 As with the prohibition against sex discrimination, the EEOC’s early enforcement of Title VII’s enforcement of the prohibition against national origin discrimination generated enormous criticism. This criticism reached its apex in 1966 with the “Albuquerque walkout,” when several representatives of Latino groups walked out of an EEOC public hearing on national origin discrimination when only one Commissioner showed up. See Craig Kaplowitz, LULAC, Mexican Americans, and National Policy102 (2005). This walkout led to demands for more vigorous enforcement of Title VII on behalf of Latinos and unprecedented unity with Latino advocacy groups. See id.; see also Julie Leininger Pycior, LBJ and Mexican Americans: The Paradox of Power Paperback (1997).

115 Civil Rights Act of 1964 §703 (codified as amended 42 U.S.C. 2000e-2 (2012)) (The statutory term “national origin” is not defined in the 1964 Act). In a solitary statement, Congressman Roosevelt, noted “[national origin] means the country from which you or your forebears came. . . . You may come from Poland, Czechoslovakia, England, France, or any other country.” 110 Cong. Rec. 2549 (1964). The Supreme Court agreed in Espinoza, the only Supreme Court case examining the scope of the prohibition, holding that prohibitions based on “citizenship” did not violate Title VII’s prohibition against “national origin” discrimination. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973). The Court ruled that “the term ‘national origin’ on its face refers to the country where a person was born, or . . . the country from which his or her ancestors came” whether they are a citizen or not). Id. The EEOC compliance manual states that national origin discrimination can manifest as discrimination based on “ethnicity,” “physical, linguistic, or cultural traits” or “perception.” U.S. E.E.O.C., EEOC Compliance Manual, Section 13: National Origin Discrimination, Dec. 2, 2002, available at http://www.eeoc.gov/policy/docs/national-origin.html (last visited Jul. 26, 2016). The courts generally have been reluctant to expand the concept of “national origin” to extend to discriminatory conduct and barriers believed to be based on immigration status. Even though the EEOC has stated that language and national origin are linked, the courts have also struggled with that relationship particularly in the context of workplace language prohibitions. Id. In two early cases, Spun Steak and Gloor, the courts upheld English-only policies that applied to the work area, but allowed exceptions to the policy during breaks or personal time. Garcia v. Spun Steak Co., 998 F.2d 1480, 1490 (9th Cir. 1993), reh’g denied, 13 F.3d 296 (9th Cir. 1993), cert. denied, 512 U.S. 1228 (1994) (finding that there may be some circumstances in which English-only policies could, along with other discriminatory acts “contribute to an overall environment of discrimination”); Garcia v. Gloor, 618 F.2d 264, 270 (5th Cir. 1980) (stating that when “a person speaks only one [language] or to a person who has difficulty using another language than the one spoken in his home, language might well be an immutable characteristic like skin color, sex or place of birth” thus, finding that bi- or multi- lingual employees have a choice). But see Maldonado v. City of Altus, 433 F.3d 1294, 1304 (10th Cir.2006) (stating that “English-only policies are not always permissible; each case turns on its facts”), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); EEOC v. Premier Operator Servs., 113 F. Supp. 2d 1066, 1069-1070 (N.D. Tex. 2000) (rejecting Gloor, deferring to EEOC guidelines to find that the blanket English only policy imposed on bilingual employees was discriminatory, and stating that expert testimony regarding “code-switching,” an unconscious act of alternating between languages, suggests that speaking English only was not a matter of choice). Though there has been much insightful scholarship exploring the contours of national origin discrimination, the practical development of the protections in the courts has been slow relative to the prohibitions against race and sex discrimination. See, e.g., Ming Hsu Chen, Governing by Guidance: Civil Rights Agencies and the Emergence of Language Rights, 49 Harv. C.R.-C.L. L. Rev. 291 (2014) (noting that the EEOC’s non-precedential, progressive guidance on national origin discrimination is valuable in advancing civil rights); Mark Colón, Line Drawing, Code Switching, and Spanish As Second-Hand Smoke: English-Only Workplace Rules and Bilingual Employees, 20 Yale L. & Pol'y Rev. 227, 229 (2002) (reviewing early cases that analyzed English-only workplace rules and concluding that those cases “understated the discriminatory impact of English-only workplace rules on all national origin language minorities, particularly those that the leading cases describe as fully bilingual”); Juan F. Perea, Ethnicity and Prejudice: Reevaluating "National Origin" Discrimination Under Title VII, 35 Wm. & Mary L. Rev. 805, 807 (1994) (noting that “[d]espite [national origin’s] parallel status and equal longevity in Title VII [with race and sex], the prohibition against ‘national origin’ discrimination remains, as it began, largely undeveloped and ineffective.”) ; Mari Matsudi, The Voices of America: Accent, Anti-discrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L. J. 1329 (1991) (reviewing accent discrimination as a form of national origin discrimination). Recently, the EEOC held a meeting discussing the emerging issues involving national origin discrimination. U.S. E.E.O.C., Written Testimony of Thomas A. Saenz, MALDEF, Nov. 13, 2013, http://www.eeoc.gov/eeoc/meetings/11-13-13/saenz.cfm (noting some new issues in national origin, specifically Latino/a discrimination include, multiple-bases discrimination and customer preference or “business image” discrimination, which effectively bar minorities from public contact jobs. Relegated to the backroom, kitchen or laundry staff, he argues Latinos suffer harms including perpetuation of stereotypes, lower compensation and lost opportunities, such as promotions.).

116 Miriam Pawel, The Crusades of Cesar Chavez: A Biography 159 (2014). See Heller, supra note 113.

117 Pawel, supra note 116, at 159.

118 Id.

119 Id.

120 The King Center, Telegram from MLK to Cesar Chavez, Jul. 8, 2015 4:00 pm, available at http://www.thekingcenter.org/archive/document/telegram-mlk-cesar-chavez [hereinafter Telegram].

121 Telegram, supra note 120.

122 The EEOC has provided longstanding leadership in this area. See P. David Lopez & Stephanie Goulston-Madison, Employment Discrimination Law: A Model for Enforcing the Civil Rights of Trafficking Victims, in Human Trafficking Reconsidered: Rethinking the Problem, Envisioning New Solutions (Kimberly Kay Hoang and Rhacel Salazar Parreñas eds., 2014). See, e.g., Chellen v. John Pickle Co., 446 F. Supp. 2d 1247, 1273 (N.D. Okla. 2006) (ordering company to pay $1.24 million to 52 male victims of national origin discrimination and “human trafficking” who were recruited from India as skilled laborers and then subjected to widespread abuse, intimidation and exploitation); U.S. E.E.O.C., Written Testimony of Anna Park EEOC Regional Attorney, Jan. 19, 2011, available at http://www.eeoc.gov/eeoc/meetings/1-19-11/park.cfm (explaining the model of human trafficking by contracting agencies, notably in EEOC v. Trans Bay Steel). See also U.S. E.E.O.C., Selected List of Pending and Resolved Cases Involving Farmworkers from 1999-Present, (last updated June 2015), available at http://www.eeoc.gov/eeoc/litigation/selected/farmworkers_august_2014.cfm (last visited Jul. 26, 2015). At the EEOC Human Trafficking and Forced Labor Meeting, Sathaporn Pronsrisirisak, charging party in EEOC v. Trans-Bay Steel testified that he looked for a job in America because he wanted a better life for his wife and small child. U.S. E.E.O.C., Written Testimony of Sathaporn Pornsrisirisak, Jan. 19, 2011, available at http://www.eeoc.gov/eeoc/meetings/1-19-11/pornsrisirisak.cfm (last visited Jul. 26, 2015). Pronsrisirisak shared his experience of applying in Thailand for a welder position and arriving in California where he was forced to work in a restaurant, and live in a communal home with twenty-seven other workers without amenities. Their passports were seized, but ultimately some decided to escape. Id. The EEOC secured T-visas for the workers, brought a suit against Trans Bay Steel and ultimately prevailed, securing compensatory damage, legal status, education and job opportunities. Id. In 2006, Pronsrisirisak finally reunited with his wife and child. Id. Despite the EEOC’s pioneering work in bringing cases on behalf of vulnerable workers such as farm-workers, migrant workers, disabled workers and women, there remain many challenges barring success in eradicating such discrimination. Some of the most significant challenges include data gathering “because of the seasonal, migrant and temporary nature of agricultural work and the largely unauthorized worker population.” See Sara Kominers, Working in Fear: Sexual Violence Against Women Farmworkers in the United States, OXFAM America 1 (2015), available at http://www.northeastern.edu/law/pdfs/academics/phrge/kominers-report.pdf (last visited Jul. 26, 2016). See also Rape in the Fields, PBS, Jun. 25, 2013, available at http://www.pbs.org/wgbh/pages/frontline/rape-in-the-fields/; Rape in the Night Shift, PBS, Jun. 23, 2015, available at http://www.pbs.org/wgbh/pages/frontline/rape-on-the-night-shift/. Presently, discrimination against immigrant and vulnerable workers is a top enforcement priority. See Strategic Enforcement Plan FY 2013-2016, EEOC (last visited Jul. 17, 2015) http://www.eeoc.gov/eeoc/plan/sep.cfm (focusing on “disparate pay, job segregation, harassment, trafficking and discriminatory policies affecting vulnerable workers who may be unaware of their rights under the equal employment laws, or reluctant or unable to exercise them”).

123 Taylor Brach, At Canaan’s Edge 259-66 (2006).

124 Id. at 259-66 (2006). See Michael D’Orso & John Lewis, Walking with the Wind 412 (2015).

125 David Garrow , Bearing the Cross: Martin Luther King, Jr., and the Southern Christian Leadership Conference (2004).

126 Brach, At Canaan’s Edge, supra note 123, at 758 (2006); Philip A. Klinker & Rodgers M. Smith, The Unsteady March: the rise and Decline of Racial Equality in America, 244 (2002) (noting that this speech occurred post-passage of the “momentous civil rights bills…. Yet, the everyday condition of most African Americans was little better” and the nation was “wracked” with racial violence).

127 Brach, supra note 1, at 259-66 (2006).

128 D’Orso & Lewis, supra note 124 at 412 (2015).

129 Michael Ashley Stein, Same Struggle, Different Difference: ADA Accommodations As Antidiscrimination, 153 U. Pa. L. Rev. 579, 627 (2004) (noting that “much of the strength of the disability rights movement's success in gaining the ADA's passage came from what Representative Tony Coelho [who introduced the bill and is epileptic] referred to as a “hidden army” of legislators who had instinctive and personal understanding of the stigma attached to disability”).

130 Tari Susan Hartman, Photograph of ADA Anniversary March Participants Holding Banner that says, “Injustice anywhere is a threat to justice everywhere.” Martin Luther King Jr., Southern Disability Law Center (2015) http://www.sdlcenter.org/. See Stein, supra note 129, at 612 (aligning challenges defining discrimination of sex, race and disability stating that “[c]anonical scholarship also distinguishes the treatment of people with disabilities from that of other protected groups because it conceives of and discusses disability as a biologically compelled reality, rather than as a contingent social construct. In so doing, these scholars make the same error about disability that the law made about race in earlier times: they drape an issue of variable social construction in the guise of fixed scientific veracity”).

131 In 1990, Congress amended the ADA to correct the narrow interpretations of the statute. See Matthew Diller, Judicial Backlash, the ADA, and the Civil Rights Model, 21 Berkeley J. Emp. & Lab. L. 19, 23 (2000) (arguing that “the pattern of narrow and begrudging interpretations of the ADA derives from the fact that the courts do not fully grasp, let alone accept, the statute's reliance on a civil rights model for addressing problems that people with disabilities face in the workplace”).

132 See E.E.O.C. v. Hill Country Farms, Inc., 899 F. Supp. 2d 827, 829 (S.D. Iowa 2012) aff'd, 564 F. App'x 868 (8th Cir. 2014).

133 Brief of the E.E.O.C. as Appellee at 4, E.E.O.C. v. Hill Country Farms, Inc., 564 F. App'x 868 (8th Cir. 2014). See also Dan Barry, The ‘Boys’ in the Bunkhouse: Toil, Abuse and Endurance in the Heartland, This Land Column, NYTimes, Mar. 9, 2014, (hereinafter Barry) available at http://www.nytimes.com/interactive/2014/03/09/us/the-boys-in-the-bunkhouse.html?_r=0.

134 Brief of the E.E.O.C. as Appellee at 5.

135 Regional Attorney of the EEOC’s Dallas District Office Robert A. Canino, who tried the case stated, “[t]he isolation and exploitation these men suffered for many years, while the fruits of their labor were cruelly consumed by their employer, cannot be explained away by good intentions, nor can the violations of the ADA be excused as antiquated social policy”). U.S. E.E.O.C., Press Release, Workers with Intellectual Disabilities Abused by Texas-Based Company for Years, EEOC Charges, Apr. 6, 2011, http://www.eeoc.gov/eeoc/newsroom/release/4-6-11b.cfm (last visited Jul. 26, 2015).

136 Hill Country Farms, 899 F. Supp. at 829.

137 Id.

138 U.S. E.E.O.C., Press Release, Jury Awards $240 Million for Long-Term Abuse of Workers with Intellectual Disabilities
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