From direct action to affirmative action: fair employment law and policy in America, 1933-1972

627 Pages·1997·1.47 MB·English

by  Paul D. Moreno

From Direct Action to Affirmative Action :
title: Fair Employment Law and Policy in
America, 1933-1972
author: Moreno, Paul D.
publisher: Louisiana State University Press
isbn10 | asin: 080712138X
print isbn13: 9780807121382
ebook isbn13: 9780585300139
language: English
Discrimination in employment--Law and
subject
legislation--United States--History.
publication date: 1997
lcc: KF3464.M665 1997eb
ddc: 344.7301/133
Discrimination in employment--Law and
subject:
legislation--United States--History.
Page iii
From Direct Action to Affirmative Action
Fair Employment Law and Policy in America. 19331972
Paul D. Moreno
Page iv
Copyright © 1997 by Louisiana State University Press
All rights reserved
Manufactured in the United States of America
First printing
06 05 04 03 02 01 00 99 98 97 5 4 3 2 1
Designer: Michele Myatt
Typefaces: Stone Sans, Stone Serif
Typesetter: Impressions Book and Journal Services, Inc.
Printer and binder: Thomson-Shore, Inc.
Library of Congress Cataloging-in-Publication Data
Moreno, Paul D., 1965-
From direct action to affirmative action : fair employment law and
policy in America, 19331972 / Paul D. Moreno.
p. cm.
Includes bibliographical references and index.
ISBN 0-8071-2138-X (alk. paper)
1. Discrimination in employmentLaw and legislationUnited
StatesHistory. I. Title.
KF3464.M665 1997
344.7301'133dc21 96-50168
CIP
Chapters 2, 3, and 4 make use of material from the author's article
"Racial Proportionalism and the Origin of Employment
Discrimination Policy, 193350," Journal of Policy History, VIII (Fall,
1996), copyright 1996 by Pennsylvania State Univeristy. Reproduced
by permission of Pennsylvania State University Press. Chapter 4 was
first published in somewhat different form as "Direct Action and Fair
Employment: The Hughes Case," Western Legal History, VIII
(Winter-Spring, 1995), 134.
The paper in this book meets the guidelines for permanence and
durability of the Committee on Production Guidelines for Book
Longevity of the Council on Library Resources.
Page v
To Joe and Connie
with Love
Page vii
Contents
Acknowledgments ix
Introduction 1
1 6
The Color-Blind Aspiration, 18651933
2 30
Racial Proportionalism in the 1930s
3 66
Establishing a National Antidiscrimination Policy
4 84
Proportionalism in the Fair Employment Era: The Hughes
Case
5 107
Fair Employment in New York, 19451955
6 135
Fair Employment in New York, 19551965
7 162
The Federal Government and Fair Employment,
19441964
8 199
The Civil Rights Act of 1964
9 231
Past Discrimination: Title VII Development, 19651971
10 267
The Griggs Case
Bibliography 283
Index 307
Page ix
Acknowledgments
I wish to thank the workers and taxpayers of the United States,
particularly those of New York and Maryland, for their support of my
college education. I would like to thank my teachers at the State
University of New York at Albany, particularly Richard Kendall and
Warren Roberts, for instilling in me a love of history and inspiring me
to research and write. Alfred A. Moss, Jr., of the University of
Maryland, and Jennifer Roback of the George Mason Center for the
Study of Public Choice read the manuscript and offered much
valuable criticism. Above all, I am grateful to Herman Belz for his
friendship, advice, criticism, and encouragement. I would like to
thank the staff of the Library of Congress, the New York, Maryland,
and California state archives, and the New York State Division for
Human Rights for their help. My wife, Lisa, read, edited, and
improved the manuscript, and made the whole enterprise worthwhile.
I dedicate the work to my parents who made it all possible.
Page 1
Introduction
A generation after the Civil Rights Act of 1964 outlawed racial
discrimination in employment, the dominant interpretation of equality
was that racial minorities and women should be represented at every
level in the work force in some proportion to their representation in
the labor market. Statistical differences are the measure of
discrimination.1 In legal terms, this concept of discrimination is
known as the "disparate-impact" theory of discrimination. The
disparate-impact theory assumes that a statistically significant
deviation between the proportion of minority group members in an
employer's work force and the proportion of minority group members
in the population constitutes prima facie proof of discrimination
which, absent justification by the employer, establishes a violation of
any or all of a number of federal, state, and local antidiscrimination
laws.
Throughout most of the history of the twentieth-century civil rights
movement, the main argument for equality was made on other
grounds. Discrimination was understood to be "unequal treatment
based on race." By this theory, members of minority groups were
denied employment opportunities for no other reason than their race.
Discrimination consisted of discrete, identifiable, individual acts of
1. Robert A. Sedler, "Employment Equality, Affirmative Action, and the
Constitutional Political Consensus," Michigan Law Review, XC (1992),
1336; Ronald J. Fiscus, The Constitutional Logic of Affirmative Action, ed.
Stephen L. Wasby (Durham, 1992); Thomas Sowell, Civil Rights: Rhetoric
or Reality? (New York, 1984), 1335.