THE LEGISLATIVE HISTORY OF
TITLE VII OF THE 1964 CIVIL RIGHTS ACT
Francis J. Vaas
VII Boston College Industrial & Commercial Law Rev. 431 (1966)
Establishing an immediate historical context for Title VII, as civil
rights legislation, Vaas notes, in 1966, that, since 1941, hundreds
of Bills proposing to prohibit discrimination in employment on the
basis of race, color, creed, national origin, religion, or citizenship,
died in legislative committee or on the House or Senate floor.
Politics, the civil rights movement,
and the Kennedy White House
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Vaas recalls that – despite brief advances in civil rights in 1957, including
the creation of a federal Civil Rights Commission – the Kennedy
Administration did not originally consider civil rights an urgent issue, or
propose sweeping federal civil rights legislation; He then notes that
President John F. Kennedy did propose federal employment discrimination
legislation in June, 1963, in his second message on civil rights;
Accounts of President Kennedy’s reluctant consideration of the civil rights
issues facing the country and his gradual awareness of the need for
federal legislation are well documented and are essential reading for
students expecting to practice in the field;
In 1961-63, the emerging national direct action campaign protesting
discrimination in education, employment, and public accommodations and
transportation – and violent Southern resistance to desegregation – was a
singular force in persuading the Kennedy White House that civil rights
legislation, including fair employment practices legislation, was urgently
needed.
HR 7152 (HR 405) & the 88th Congress
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The White House bill (co-sponsored by Rep. James Roosevelt of
California), though comprehensive, did not originally propose compulsory
fair employment practices provisions for private employers, but did
propose the creation of the Equal Employment Opportunity Commission –
to prevent discrimination by federal contractors and subcontractors;
In committee, the proposal of a bifurcated EEOC with both investigatory
and adjudicatory powers was opposed by proposals that rejected the grant
of direct enforcement powers in favor of the limited authority to seek
judicial intervention in cases where conciliation of disputes failed;
Early Judiciary Committee debate also focused on the apparent concern
that the new law should not unduly interfere with the internal affairs or
freedom of employers or unions, and more specifically, should not
establish any affirmative duty to correct the effects of past discrimination
by requiring the hiring of minorities generally, to achieve racial balance in
the workforce. The “correction of discriminatory practices” was given
narrow meaning, and legislative intent was simply to permit previously
deselected minorities to seek employment based on their qualifications,
and without regard to artificial considerations of race (etc.)
House Amendments
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Vaas notes, inter alia, the significance of House Amendments on
the following subjects:
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The clarification that certain discrimination, e.g., the
consideration of national origin, or religion could, under certain
circumstances, be bona fide,
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The protection of employer action, unless based on the
consideration of a protected trait;
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The addition of “sex” as a protected trait (by vote of 168 – 133),
notwithstanding its proposal as an act of political cajolery by
anti-civil rights proponents in the Senate;
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The anti-Communist provision.
The Senate debate
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Vaas describes the Senate debate in 3 phases:
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The 14 day debate whether to have HR 7152 considered, noting the leadership
of Senator Mike Mansfield of Montana and the opposition of Senator James
Eastland of Mississippi (Although he had been a supporter of Kennedy’s
candidacy, Eastland’s opposition was not based on traditional arguments about
federal vs. state interests – but rather was motivated by his support of
segregation per se, and white supremacy);
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The final 67-17 vote to consider the Bill, despite the concerns of Senators
Morse and Dirksen that it should be referred to committee to correct defects in
the House version;
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The formal Senate debate, and the leadership of Senators Hubert Humphrey
(Senate Majority Whip) and Senator Thomas Kuchel of California (Minority
Whip) – both brilliant and courageous defenders of civil rights – outside the
floor debate, to reach consensus which would secure the passage of the Bill;
and the eventual proposal of Amendment 1052;
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Cloture on June 8, 1964, and passage of the Bill in the Senate on June 19 by a
vote of 73-27 – all Senators being present.
Definitions, exemptions & unfair employment practices
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Vaas notes the seminal provisions of Title VII, as sent to
President Johnson:
 The definition of covered employers, labor
organizations, and protected employees, and
excluding “Indian tribes” from the definition of
employer;
 The “religion” exemption;
 The fundamental prohibition of discrimination on the
basis of race, national origin, color, sex, religion, by
covered employers, or labor organizations (Note
Vaas’ early mention of the issue of causation, i.e.,
“significant factor” and “mixed motive” approaches to
the analytical paradigm in Title VII cases).
Noteworthy limitations on the scope
of Title VII as proposed
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That religion, sex, or national origin may, under certain
circumstances, be a BFOQ;
The protection of governmental security requirements, as a
precondition to certain employment;
The protection of bona fide seniority systems which influence
wages, or other terms or conditions of employment – where not
employed for the purpose of discriminating on the basis of race,
etc.;
The “limited” protection of an “employer’s” use of “professionally
developed” ability tests;
The prohibition of “racial balancing” (Note Vaas’ concern whether
an existing "imbalance" could be considered in determining
motivation for the overt act of denying employment to a member of
a minority group, and his related question whether Title VII would
permit claims of “reverse discrimination”).
The EEOC
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Vaas emphasizes the legislated limitations on the newly
established Commission’s power to:
 Establish offices (The structure of EEOC remains
dynamic), and require employer record-keeping;
 Engage in litigation to directly enforce the statute
(Limiting the Agency’s basic role to private,
confidential efforts at conciliation of disputes, but
allowing EEOC to refer “pattern or practice” cases
to the Attorney General and to assist the USOAG in
litigation).
Monetary remedies & Attorneys fees
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Note the original vesting of subject matter
jurisdiction in the federal courts, and the
exclusive provision of equitable remedies,
including back pay;
Note the provision for the judicial award of
attorneys’ fees to a prevailing plaintiff, in
comparison to the private tort system’s
compensation scheme for attorneys.
Conclusion
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Vaas’ concluding commentary presages the Supreme
Court’s struggle, over the next four decades to define
“discrimination” and establish the boundaries of Title
VII’s application;
Although Title VII, and the other provisions of the 1964
Civil Rights Act, are the product of a courageous
leadership on the part of the Executive and Congress,
the inadequacies of the legislative process have
provided students of this subject with an opportunity to
engage in a critical study of how the Supreme Court
works, and whether it has been efficient and effective, in
enforcing a nondiscrimination principle fashioned by a
debate which was mightily influenced by geo-cultural
factors.