When William “Sonny” Walker was a college kid in Arkansas in the 1950s, he had to travel to Indiana to find summer jobs waiting tables because he was black and the segregated South didn’t offer him much opportunity.
After he graduated and started teaching, he was paid about two-thirds of what the white teachers earned across town in Little Rock, Ark.
Now the retired civil rights leader is 80, with grandchildren who had access to meaningful internships and other opportunities during their summer breaks. One grandson is even the principal at a Little Rock school.
Walker, former head of the Martin Luther King Jr. Center for Nonviolent Social Change in Atlanta, and others credit much of the change in the American workplace to the seminal Civil Rights Act signed into law 50 years ago this summer.
Title VII of the law outlawed employment discrimination based on race, sex, color, religion and national origin—and changed the thinking of Americans about the concept of fairness.
The Scope of Change
Today’s college students are baffled at the thought that it ever was acceptable to use factors such as race and gender to deny people jobs, says William P. Jones, a historian, professor at the University of Wisconsin-Madison, and expert on the civil rights movement and the role of labor. But before Title VII, classified ads often spelled out which genders and races could apply for particular jobs.
As a boy in the early 1970s, John Lewis Jr. tagged along to his mother’s job as a clerk at a Texas furniture store—a position she wouldn’t have had a chance at getting before Title VII. He was young but immediately saw that she was the only black employee in the accounts payable department. He asked her, “Where am I going to work when I become an adult?”
Lewis, now 49, grew up to become a lawyer and chief diversity officer at Coca-Cola Co. in Atlanta. He oversees programs to identify diverse talent, to make sure company policies don’t unfairly affect certain segments of workers and to push Coke toward a goal of $1 billion in spending annually on suppliers with minority owners.
“We’ve seen a dramatic shift in what is a just approach to employment,” says Jones, author of The March on Washington: Jobs, Freedom, and the Forgotten History of Civil Rights (W.W. Norton & Co., 2013).
The larger Civil Rights Act that included Title VII came amid sit-ins, the March on Washington for Jobs and Freedom in 1963, and calls for the end of invidious discrimination that led to vastly different opportunities and treatment for whites and blacks. The law set out to end segregation in education and in public places and to protect the voting rights of minorities.
Title VII’s ban on employment discrimination set up a whole new concept that private employers could not discriminate in the workplace.
“It’s one of the most important changes we see resulting from the Civil Rights Act,” Jones says. “Changing the law actually did change people’s minds because now it’s largely accepted as unjust to discriminate in employment based on race or gender.”
In terms of sheer numbers, women have arguably benefited the most from the civil rights law, says Jocelyn Frye, senior fellow at the Center for American Progress, a think tank in Washington, D.C. Census figures show that women made up nearly 47 percent of the civilian workforce in 2013—compared with about 29 percent in 1967, when Title VII was still new.
But women almost didn’t get included. As Southern lawmakers fought bitterly against civil rights legislation, Rep. Howard W. Smith, a Virginia Democrat, added gender to the list of classes of people who couldn’t be discriminated against. Jones says there is some historical debate about whether Smith did it to try to draw more opposition to the Civil Rights Act and kill the measure, or whether he truly wanted women protected.
Later, Congress expanded workplace protections beyond Title VII to include, for example, people with disabilities and older individuals.
The nation’s increasingly diverse demographics have meant that employers that discriminate would miss out on a larger pool of talent.
Minorities make up 35 percent of the private industry workforce—about 10 percentage points higher than in 1996, according to 2012 figures from the U.S. Equal Employment Opportunity Commission (EEOC).
Women and minorities still are underrepresented in many of the best-paying jobs, but less so than 50—or even 20—years ago.
Oneida D. Blagg, PHR, director of diversity and employment practices at the University of Wyoming, says companies need to make sure diversity also extends to the executive offices, where less than 5 percent of Fortune 500 CEOs are women or minorities.
“You can’t just talk about inclusion,” says Blagg, a retired Air Force lieutenant colonel who worked on equal employment opportunity in the military. “Your top ranks need to reflect the community you serve.”
Many companies have realized that having a diverse staff helps them understand their customers better. Minorities represent 37 percent of the U.S. population now, compared with less than 17 percent in 1970, U.S. Census Bureau figures show. “Diversity in the workforce today is a financial issue,” says Nicole Butts, SPHR, a Los Angeles-based client services manager at Berkshire Associates, a Columbia, Md., human resources consulting company. “I need to speak to my customer base, and my customer base is diverse.”
Lewis agrees. Coca-Cola, he points out, is sold around the world to diverse consumers. Diversity is “part of the differentiation of our brand,” he says. “It’s also bringing diverse viewpoints to the table as we make important decisions. The more diverse the room when decisions are made, the better the decisions.”
Title VII with Teeth
Title VII established the EEOC to enforce the law.
The resulting succession of numerous lawsuits have helped define workplace protections, forced companies to change unfair policies and practices, and given the law teeth. “Many of the human resources best practices that companies utilize are an outgrowth of equal employment cases,” Butts says.
When Title VII was first passed, many cases involved people who weren’t hired because of their gender, race or other characteristics. However, over time, the focus shifted from getting hired to fairness in promotions, says Douglas J. Farmer, a partner in San Francisco with law firm Ogletree Deakins. Today, many cases involve terminations, he says.
Jonathan A. Segal, a partner at law firm Duane Morris in Philadelphia, says the proportion of his cases involving pay and promotion has increased from 15 percent 15 years ago to nearly 35 percent now.
The nature of discrimination has changed, too. Unconscious bias has largely replaced overt discrimination. Segal says professionals need to be wary of “like me” bias—managers favoring workers who remind them of themselves—and of recruiting for jobs through word-of-mouth, which attracts mostly people demographically like them.
The law does more than just prohibit disparate treatment in hiring, promotion, and other actions affecting the terms and conditions of employment, Farmer says. It also bans discrimination that isn’t intentional but that has a discriminatory impact. For example, firefighter promotion exams that had a disparate impact on the chances of women or minorities without a justifiable business need went up in smoke after being challenged in the courts.
The EEOC handled nearly 94,000 charges under Title VII and other laws in 2013. The agency recovered $256 million in monetary awards last year, not including what was recovered by those who went to court.
Evidence of Discrimination
Douglas J. Farmer, an employment lawyer with Ogletree Deakins, finds it remarkable that there are still so many lawsuits 50 years after Title VII became law. Part of the problem is that defining discrimination is not as clear-cut as, say, showing that an employer has paid someone less than minimum wage.
In Title VII cases, Farmer says, courts look at three kinds of evidence:
More to Do
Fifty years may have been enough time to change the face of the American workplace, but the journey toward workplace equality is far from over.
Figures from the U.S. Bureau of Labor Statistics show that women earn 82 cents for every dollar a man makes. The figure at the start of 1979, by comparison, was 75 cents. (However, earnings data do not adjust for types of occupations and years of experience.)
Some of the problems now are more subtle than, say, simply paying women a lower wage. For instance, more needs to be done to make sure there is equal opportunity to get the plum jobs, Butts says. “We need to look at the decision-making that impacts pay—not just the pay itself,” she explains.
And just as the authors of Title VII didn’t anticipate the need to include sexual orientation and disability status in the law, other groups may emerge in the future to claim new protections.
Segal predicts that age discrimination may become an issue as Baby Boomers linger in jobs and Millennials itch to take their place. Workers with criminal records also have gained attention due to minorities’ disproportionate incarceration rates. (See “Choices and Chances” also in this issue.)
Procedurally, Farmer would like to see alternative dispute resolution required to force both sides in a dispute to negotiate. For employers, going to trial is expensive and disruptive as employees are called to testify. In addition, the outcomes are uncertain. Farmer compares a jury trial to betting all your money on one color on a roulette wheel. “There is no predictability in the system,” he says.
He would also like to see better guidance and clearer tests from the courts that employers and workers can use to understand when discrimination has taken place.
But balance is needed between legislating diversity and taking a more organic approach, Lewis says. “While the laws are an important component, [so too are] policy and culture and how we engage each other in a community.”
HR departments have an important role to play, Segal says, by “looking at equal employment opportunity not just as a compliance issue but as a value—make sure you hire, mentor and promote the best and the brightest.”
Frye says companies need to make sure managers and supervisors understand the law. “Employers who are on top of these issues are doing yearly training with managers and employees.”
Employers are pushing for diversity and fairness in the workforce for more than just altruistic reasons. “The purpose is so we can thrive as companies and as a country because we are taking advantage of this diversity of thought,” Butts says, adding that “It simply is good business.”
Tamara Lytle is a freelance writer in the Washington, D.C., area.