Today is the 50th anniversary of the signing of the Civil Rights Act, one of the most important markers of racial progress--and its lack--in the United States. President Lyndon Johnson signed it to end Jim Crow segregation. Even conservatives like William F. Buckley have agreed, in recent years, that it greatly improved the status and life chances of African Americans in particular, and that federal intervention had been necessary to do so.
Yet, segregation continues in nearly every arena of life and becomes increasingly more difficult to address through the Civil Rights Act as it currently stands and is applied. Although the Act has evolved over time through case law and amendments to cover disparate impact as well as discriminatory intent, a plaintiff's ability to get a remedy under the impact clauses can easily be derailed. What better time than the half century mark to call for stronger remedies to modern-day discrimination, whose mechanisms are often hidden?
We think of segregation most commonly with regard to housing and schools, and the country remains deeply segregated in those arenas. But we don't often talk about segregation in employment, what researchers call "occupational segregation," describing the phenomenon in which certain people are steered toward certain jobs, or toward deep long term unemployment. In last week's Colorlines installment of the Life Cycles of Inequity series on the experiences of black men, Kai Wright cites a study that reveals segregation in high-wage construction and other industrial jobs: 45 percent of white men, compared to 15 percent black men and very few women at all, and with white men earning approximately double what the black men do.
Women, and many men of color, are steered into lower paying occupations as a matter of course, with deep consequences to their lives and families. Workers organizations such as the Restaurant Opportunities Centers and the Retail Action Project have begun to document this kind of segregation. According to the Roosevelt Institute's research, for us to have desegregated workplaces fully as of 2005, nearly 70 percent of black women would have had to switch occupations with white men.
These are not the kind of phenomena that the Civil Rights Act addresses effectively. And where they might have done so, courts frequently find tangential elements of the cases that block accountability. In 2011, I wrote about the SCOTUS decision in Dukes v. Wal-Mart, in which the majority ruled that 1.5 million women employees could not file a class action suit over discrimination in promotions because male managers used too many different methods of discrimination for that to constitute a pattern. Without the ability to sue as a class, these 1.5 million women will all have to file smaller, or worse, individual lawsuits.
More recent cases further raised the bar for plaintiffs. Last year, SCOTUS ruled in University of Texas Southwestern Medical Center v. Nassar that retaliation for union organizing was only punishable if it was the decisive factor in a firing, not just a motivating factor. In Vance v. Ball State University, SCOTUS defined a supervisor differently from the way the Equal Employment Opportunity Commission does (companies are punished more if a supervisor creates a hostile work environment than if a co-worker does) by insisting that "supervisors" have the ability to hire, fire and promote, versus the power to assign and correct daily workloads.
What does this mean for those of concerned with the ongoing state of race, gender and economic opportunity? It doesn't mean that we dismiss the Civil Rights Act of 1964 as useless or outdated. It does mean that remembering that there was deep resistance to this law, and it didn't end in 1965. Conservatives have devoted a lot of energy in the past 50 years to limiting our understanding of what constitutes racial and gender discrimination, while employers have found multiple ways to segregate us with impunity. In the midst of all the important remembrances and celebrations that will take place this summer, and this year of our Civil Rights era accomplishments, we need to keep our eyes on a prize that hasn't yet been won.