Race- and Sex-Based Discrimination: How Far Have We Come, Truly, Since 1964?
Interdisciplinary scholars examined societal shifts—or lack thereof—in the 50 years following the Civil Rights Act of 1964
The Civil Rights Act of 1964 at 50 Conference at the Boston University School of Law, November 14 and 15, welcomed scholars from a wide range of disciplines, who addressed subsequent amendments to the Act, court opinions related to civil rights, and future directions for expanding and guaranteeing rights.
Friday’s highlight was a provocative lunchtime keynote from William Julius Wilson, the Lewis P. and Linda L. Geyser University Professor and director of Joblessness and Urban Poverty Research Program at the Harvard Kennedy School, speaking on “Public Policy Challenges Facing the Growing Shift in Emphasis from Race-Based to Class-Based Programs.” Wilson, a MacArthur Prize Fellow from 1987 to 1992, also has more than 40 honorary degrees, and is the author of books including The Declining Significance of Race, The Truly Disadvantaged, When Work Disappears: The World of the New Urban Poor, and, most recently, More than Just Race: Being Black and Poor in the Inner City. He began with an overview of the shifts in focus within the civil rights movement over time.
A growing economic schism among black Americans
In the 1950s and early 1960s, “all blacks, regardless of station in life, were concerned about discrimination in public accommodation,” Wilson said. However, “the group that profited most” from legislation like the Civil Rights Act of 1964, “was middle-class blacks.”
Wilson asked a question first asked by Martin Luther King, Jr.: “What good is it to be allowed to eat in a restaurant if you can’t afford a hamburger?” He noted that an “accumulation of disadvantages”—social, cultural and mechanical in nature—in the years following the Civil Rights Act of 1964 “compounded the problems of poor blacks.” Out of that arose a new approach, Wilson said, including a “rhetoric of black militancy” and an “emphasis on we vs. they.”
Amid that atmosphere, attention was diverted away from solutions, Wilson contended. The early 1970s “marked the end of the great migration wave,” and a combination of factors in the period, particularly changes to the manufacturing sector and the resultant “decline of industrial employment in the central city,” affected moves in and out of urban black communities, Wilson said. Poor neighborhoods were distinguished by “abandoned buildings and vacant lots,” Wilson said, and some parents in those neighborhoods “chose to protect their children by isolating them from neighborhood activities.”
By the 1980s, even civil rights leaders were puzzled about the best solution, he said. That period was marked by President Ronald Reagan’s “distinctly laissez faire approach to civil rights,” as well as Reagan’s “war on poverty,” which Wilson said “emerged, paradoxically, during a period of relative economic prosperity.” Approaches to the economy and to poverty were distinct.
Yet “changes in the structure of employment since the 1960s have seriously diminished the stability of many working Americans,” which does have an effect on the economy, he said. Within that framework, black Americans in the manufacturing sector were “disproportionately exposed” to unstable employment in times of economic downturn, he emphasized. The most recent recession, as is typical of recessions, “more severely affected black and Latino males than their white counterparts,” Wilson said as he shared detailed data about unemployment numbers over time.
The “net effect is a growing economic schism between poor and economically advantaged blacks,” Wilson said.
The need for social and economic reform
He concluded by discussing how vulnerability of poor blacks to economic shifts has amplified the challenges they face, how the war on poverty did not go far enough to address the links between the economy and smaller-scale poverty, how the liberal perspective on these issues not only fails to address the problems but also fails to provide a solid rebuttal to conservative critiques of their approach, and how the focus on social change draws attention away from the role of economic shifts in these issues.
A public policy approach that integrates economic and social reform is Wilson’s solution. It will require a “radicalism that neither Democrats nor Republicans” have proposed, he said, including a “move away from a policy of controlling inflation by allowing unemployment to increase,” training and education for workers, support for single mothers, and other “alternative and decentralized” measures.
Wilson answered a range of audience questions and concluded with a ringing endorsement of The Wire, a 2002-08 HBO drama series set in Baltimore, for its accurate depiction of the life of poor, urban minorities.
Title 7: the sex discrimination provision and gender equity
On Saturday, the conference’s concluding keynote speech came from the US Equal Employment Opportunity Commission’s Commissioner Chai R. Feldblum. Previously a professor at Georgetown University Law Center, Feldblum expressed appreciation for the opportunity to teach once more. Her lecture focused on gender equity since the passage of the Civil Rights Act of 1964, and how to achieve positive future changes.
The Civil Rights Act of 1964 was “definitely a historic piece of legislation,” Feldblum said, though it was “not a fully transformational piece” because it, alone, cannot achieve full gender equity.
The EEOC’s commissioners “have taken our job seriously” as it relates to implementation of the Civil Rights Act of 1964, she said. However, the 50th anniversary of the act “is a particularly useful” time to reflect, Feldblum said. Signs of progress at the EEOC include decisions like the one that said a policy not allowing cornrows or locked hair was a form of racial discrimination, and continued efforts to oppose English-only rules for workplaces.
Any solutions require work on multiple fronts—law, policies in practice, and social norms—to be fully addressed, Feldblum said. Law and its implementation is the most straightforward front, she noted. Policy requires looking at “how and whether the words of laws … have actually been absorbed into the sinews” of organizations affected by those laws, she said. Social norms are the hardest to evaluate and affect, she said, and until the public believes a certain cause is a “good social outcome,” that cause will never be achieved.
Feldblum then explored the sex discrimination provision, Title 7 of the Civil Rights Act of 1964. The provision had not been included in early drafts of the act, but Feldblum dismissed as a myth the persistent story that gender equity wasn’t on Congress members’ minds. Congress had in fact been debating its predecessors for about 40 years by then, she said, including versions of an equal rights amendment. The versions proposed in the 1940s and 50s reflected the idea that women’s “real jobs were to be wives and mothers,” Feldblum said, as did the early approaches to enforcement of Title 7.
In the early years, she said, employers were prohibited from not hiring a person based on their sex, for example, but newspaper classified sections that designated men’s and women’s jobs were fine. Soon, however, EEOC decisions said that refusing to hire married women, but hiring married men, amounts to sex discrimination. Feldblum said the EEOC was a leader in recognizing the potential harms of sex stereotypes, holding that “gender must be irrelevant to employment decisions.”
“It’s sort of mind-blowing how much [the fight for gender equity] is not over” even now, Feldblum said. She sees case after case involving women in nontraditional, male-dominated jobs. “The amount of sexual harassment that is still going on in our workplaces is truly horrific,” she said.
A three-part solution
Returning to her three-part framework, she said that “Law, on its own, will never do this work.” Rather, what is needed, Feldblum said, is a “proactive … strategy that will totally change social norms,” such that both men and women know that harassment is “not OK.”
As an example, she cited Young v. United Parcel Service, a case being argued next month before the Supreme Court, which will decide whether the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires employers who provide accommodations to employees with temporary obstacles to non-accommodated work is also required to provide similar accommodations to pregnant employees with the same sorts of obstacles. As an example of the law affecting change, Feldblum noted that “UPS announced in its brief that it was going to change its policy” toward accommodating pregnant employees.
“If an employer acts on the basis of a gender stereotype,” she said, “that is evidence that gender has been taken into account.”
Next, Feldblum addressed the ongoing challenge of gender pay equity. “Some of the pay disparity comes from blatant discrimination,” she said, but a lot of it is also because of “job segregation,” or the funneling of male and female workers into “traditional” jobs. Forty percent of men and women work in jobs that are traditionally dominated by their respective genders, and even if they require the same skills, female-dominated fields pay less than male-dominated ones, she said.
Sexual orientation and gender identity discrimination—a form of gender stereotyping?
Finally, she examined efforts to end employment discrimination based on sexual orientation or gender identity. Feldblum led the 1993 drafting of the Employment Nondiscrimination Act, which she still supports. Further, she held that “discrimination based on being transgender is sex discrimination.” Both recent case law and social trends have been adapting to this understanding, she said.
“It’s a gender stereotype to think that a man should marry a woman,” Feldblum said. “Courts have begun to pick up these theories.”
She concluded by answering questions from the audience about how changes come about. “If you haven’t changed hearts and minds to some extent,” she said, “then you can’t make real change.”
Other scholarly perspectives
BU Law Dean Maureen O’Rourke and Conference Committee Chair and Professor Linda C. McClain welcomed guests to the conference on Friday morning. Friday panels included Historical Perspectives; Classifications and Categories in the 1964 Act and in Subsequent Civil Rights Laws; Reshaping Public and Private Space: Public Accommodations, Neighborhoods, and Housing; and Reshaping Public and Private Space: Education, the Workplace, and the Military. Friday attendees were welcomed to a reception at the Boston University School of Theology featuring Dr. Walter E. Fluker, Martin Luther King, Jr. Professor of Ethical Leadership at the BU School of Theology, speaking on “Now We Must Cross A Sea: Remarks on Transformative Leadership and the Civil Rights Movement.” Saturday panels were Proving Discrimination and The Limits and Future of Antidiscrimination Law.
See full recordings of the conference below:
Panel 1: Historical Perspectives and Panel 2: Classifications and Categories in the 1964 Act and in Subsequent Civil Rights Laws
Panel 3: Reshaping Public and Private Space: Public Accommodations, Neighborhoods, and Housing and Panel 4: Reshaping Public and Private Space: Education, the Workplace, and the Military
Panel 5: Proving Discrimination and Panel 6: The Limits and Future of Antidiscrimination Law
Keynote address: Gender Equity: 50 Years After Passage of the Civil Rights Act of 1964