The political development of job discrimination litigation, 1963-1976

Studies in American Political Development

Volumn 23, Issue 1, 2009, Pages 23-60

  Farhang, Sean ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 68249128767     PISSN: 0898588X     EISSN: 14698692     Source Type: Journal    
DOI: 10.1017/S0898588X09000029     Document Type: Review

References (454)

1. Annual Report of the Administrative Office of the United States Courts, Table C-2, 2000-2005.
2. See, e.g., Robert A. Kagan, Adversarial Legalism: The American Way of Law (Cambridge: Harvard University Press, 2001);
3. Thomas F. Burke, Lawyers, Lawsuits, and Legal Rights: The Battle Over Litigation in American Society (Berkeley: University of California Press, 2002);
4. R. Shep Melnick, Between the Lines: Interpreting Welfare Rights (Washington, D.C.: The Brookings Institution, 1994).
5. Equal Employment Opportunity Commission, Legislative History of Titles VII and XI of Civil Rights Act of 1964 (Washington D.C.: United States Government Printing Office, 1968), 5-6;
6. Bureau of National Affairs, State Fair Employment Laws and Their Administration: Texts, Federal State Cooperation, Prohibited Acts (Washington, D.C.: Bureau of National Affairs, Inc., 1964).
7. Bureau of National Affairs, State Fair Employment Laws and Their Administration, 237-38.
8. Mary Frances Derfner, "One Giant Step: The Civil Rights Attorney's Fees Awards Act of 1976," Saint Louis University Law Journal 21 (1977): 441-451, 422.
9. Karen O'Connor and Lee Epstein, "Bridging the Gap between Congress and the Supreme Court: Interest Groups and the Erosion of the American Rule Governing Awards of Attorneys Fees," Western Political Quarterly 38 (1985): 238-49, 239.
10. Kagan, Adversarial Legalism, 15;
11. Burke, Lawyers, Lawsuits, and Legal Rights, 15-16.
12. Paul Frymer, Black and Blue: African Americans, the Labor Movement, and the Decline of the Democratic Party (Princeton: Princeton University Press, 2007): 14-15, 76-94, 130-37.
13. Frymer, Black and Blue, 78.
14. Frymer, Black and Blue, 7, 14.
15. See, e.g., Phillip B. Heymann and Lance Liebman, "No Fault, No Fee: The Legal Profession and Federal No-Fault Automobile Insurance Legislation," The Social Responsibilities of Lawyers, ed. Phillip B. Heymann and Lance Liebman (Westbury: Foundation Press, 1988), 309;
16. Alan S. Rau, Edward F. Sherman, and Scott R. Peppet, The Process of Dispute Resolution: The Role of Lawyers 4th ed. (New York: Foundation Press, 2006), 56;
17. Michelle J. White, "Legal Complexity and Lawyers' Benefit from Litigation," International Review of Law and Economics 12 (1992): 381-95, 394- 95;
18. Randolph I. Gordon and Brook Assefa, "A Tale of Two Initiatives: Where Propaganda Meets Fact in the Debate Over America's Health Care," Seattle Journal for Social Justice 4 (2006): 693;
19. Roberta Romano, "The Sarbanes-Oxley Act and the Making of Quack Corporate Governance," Yale Law Journal 114 (2005): 1521-1611.
20. Peter Ordershook, "The Emerging Discipline of Political Economy," in Perspectives on Positive Political Economy, ed. James Alt and Kenneth Shepsle (Cambridge: Cambridge University Press, 1990), 9-30, 13.
21. Robert O. Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princeton: Princeton University Press, 1984), 80.
22. Paul Pierson, Politics in Time: History, Institutions, and Social Analysis (Princeton: Princeton University Press, 2004), ch. 4.
23. James Alt and Kenneth Shepsle, "Editors' Introduction," in Perspectives on Positive Political Economy, ed. James Alt and Kenneth Shepsle (Cambridge: Cambridge University Press, 1990), 1-5, 2.
24. Eric Schickler, Disjointed Pluralism: Institutional Innovation and the Development of the U.S. Congress (Princeton: Princeton University Press, 2001), 13;
25. Michael McFaul, "Institutional Design, Uncertainty, and Path Dependency during Transitions: Cases from Russia," Constitutional Political Economy 10 (1999): 27-52, 29-30.
26. Pierson, Politics in Time, ch. 4.
27. Paul Pierson, "The Study of Policy Development," Journal of Policy History 17 (2005): 34-51;
28. Robert Jervis, System Effects: Complexity in Political and Social Life (Princeton: Princeton University Press, 1997), chapter 4;
29. Barbara Levitt and James G. March, "Organizational Learning," Annual Review of Sociology 14 (1988): 319-40, 323.
30. Pierson, "The Study of Policy Development," 38-39;
31. Jervis, System Effects, ch. 4;
32. Christopher Howard, The Hidden Welfare State (Princeton: Princeton University Press, 1997), 93-94.
33. Pierson, Dismantling the Welfare State?, 41-42;
34. Hugh Helco, Modern Social Politics in Britain and Sweden (New Haven: Yale University Press, 1974), 305-16;
35. Edwin Amenta, Elisabeth Clemens, Jefren Olsen, Sunita Parikh, and Theda Skocpol, "The Political Origins of Unemployment Insurance in Five American States," Studies in American Political Development 2 (1987): 137-82;
36. Jervis, System Effects, ch. 4.
37. Paul Pierson, Dismantling the Welfare State? Reagan, Thatcher and the Politics of Retrenchment (Cambridge: Cambridge University Press, 1994), 40;
38. Margaret Weir and Theda Skocpol, "State Structures and the Possibilities for 'Keynesian' Responses to the Great Depression in Sweden, Britain, and the United States," Bringing the State Back In, ed. Peter Evans, Dietrich Rueschemeyer, and Theda Skocpol (Cambridge: Cambridge University Press, 1985): 107-63, 143-44;
39. Theda Skocpol, "The Origins of Social Policy In the United States," The Dynamics of American Politics, ed. Lawrence C. Dodd and Calvin Jillson (Bolder: Westview Press, 1994);
40. Eric Patashnik, "After the Public Interest Prevails: The Political Sustainability of Policy Reform," Governance 16 (2003): 203-34.
41. Paul Pierson, "The Study of Policy Development,"43 (emphasis added).
42. Pierson, "The Study of Policy Development," 43.
43. See, e.g., Judith Stein, Running Steel, Running America: Race, Economic Policy and the Decline of Liberalism (Chapel Hill: University of North Carolina Press, 1998), 84-85;
44. Tony Chen, The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941-72 (Princeton: Princeton University Press, 2009, ch. 5 (all citations are to a draft manuscript provided by Chen);
45. Daniel Rodriguez and Barry Weingast, "The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and its Interpretation," University of Pennsylvania Law Review 151(2003): 1489-96;
46. John D. Skrentny, The Ironies of Affirmative Action: Politics, Culture, and Justice in America (Chicago: University of Chicago Press, 1996), 120-25. Two recent works deviate from this tendency: Robert Lieberman suggests that the EEOC's hand was actually strengthened by lack of formal powers, which led it to forge effective alliances with civil rights groups, and Paul Frymer emphasizes that private litigation, with fee shifting, proved to be a potent weapon wielded against discriminatory practices by labor unions by imposing large financial costs on them. Robert C. Lieberman, Shaping Race Policy: The United States in Comparative Perspective (Princeton, N.J.: Princeton University Press, 2005);
47. Frymer, Black and Blue.
48. James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It (New York: Basic Books, 1989), 311.
49. Nicholas Pedriana and Robin Striker, "The Strength of a Weak Agency: Enforcement of Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity, 1965-1971," American Journal of Sociology 110 (2004): 709-760, 711.
50. Robert A. Caro, Master of the Senate (New York: Alfred A. Knopf, 2002), 78-108;
51. William N. Eskridge, "Reneging on History? Playing the Court/Congress/President Civil Rights Game," California Law Review 79 (1991): 613-84, 619 & n.27;
52. Rodriguez and Weingast, "The Positive Political Theory of Legislative History," 1417-1542;
53. Chen, The Fifth Freedom, ch. 5.
54. Charles and Barbara Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act (Washington, D.C.: Seven Locks Press, 1985), 4.
55. Thomas Byrne Edsall and Mary D. Edsall, Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics (New York: Norton, 1992), 36;
56. James L. Sundquist, Politics and Policy: The Eisenhower, Kennedy, and Johnson Years (Washington, Brookings Institution, 1968), 221-71;
57. Denton L. Watson, Lion in the Lobby: Clarence Mitchell, Jr.'s Struggle for the Passage of Civil Rights Laws (New York: Morrow, 1990), 485-625;
58. Whalen and Whalen, The Longest Debate, 13;
59. Chen, The Fifth Freedom, ch. 5.
60. Edward G. Carmines and James A. Stimson, Issue Evolution: Race and the Transformation of American Politics (Princeton, N.J.: Princeton University Press), 46.
61. Edsall and Edsall, Chain Reaction, 36;
62. Sundquist, Politics and Policy, 230.
63. Rodriguez and Weingast, "The Positive Political Theory of Legislative History," 1456.
64. Chen, The Fifth Freedom, ch. 5;
65. David B. Filvaroff and Raymond E. Wolfinger, "The Origin and Enactment of the Civil Rights Act of 1964," Legacies of the 1964 Civil Rights Act, ed. Bernard Grofman (Charlottesville: University Press of Virginia, 2000), 14-18;
66. Lieberman, Shaping Race Policy, 160-61;
67. Rodriguez and Weingast, "The Positive Political Theory of Legislative History," 1481-87.
68. 71 Stat. 634, Public Law 85-315.
69. 74 Stat. 86, Public Law 86-449.
70. Daniel M. Berman, A Bill Becomes a Law: The Civil Rights Act of 1960 (New York: Macmillan, 1962);
71. Caro, The Master of the Senate, 910-1012;
72. Sundquist, Politics and Policy, 222-250.
73. Chen, The Fifth Freedom, ch. 5.
74. Morroe Berger, Equality by Statute: The Revolution in Civil Rights (Garden City, N.Y.: Doubleday, 1967), 160;
75. Jack Greenberg, Race Relations and American Law (New York: Columbia University Press, 1959), 109 n.17, 309;
76. Michael I. Sovern, Legal Restraints on Racial Discrimination in Employment (New York: Twentieth Century Fund, 1966), 79.
77. Greenberg, Race Relations and American Law, 271;
78. Stein, Running Steel, Running America, 84;
79. Watson, Lion in the Lobby, 362-63.
80. See, e.g., O'Connor and Epstein, "Bridging the Gap between Congress and the Supreme Court."
81. Greenberg, Race Relations and American Law, 16, 283.
82. Stein, Running Steel, Running America, 84;
83. Greenberg, Race Relations and American Law, 16.
84. Jack Greenberg, correspondence with the author, 22 August 2007.
85. Greenberg, Race Relations and American Law, 22.
86. Watson, Lion in the Lobby, 362-63;
87. Greenberg, Race Relations and American Law, 138.
88. Robert D. Loevy, To End All Segregation: The Politics of the Passage of the Civil Rights Act of 1964 (Lanham, MD: University Press of America, 1990), 29;
89. Greenberg, Race Relations and American Law, 271;
90. Stein, Running Steel, Running America, 84;
91. R. Wayne Walker, "Title VII: Complaint and Enforcement Procedures and Relief and Remedies," Boston College Industrial & Commercial Law Review 7 (1966): 495-524, 501.
92. Greenberg, Race Relations and American Law, 101.
93. Francis J. Vaas, "Title VII: Legislative History," Boston College Industrial & Commercial Law Review 7 (1966): 431-58, 433-35.
94. st sess., 22 August 1963 (hereinafter "House Report No. 570").
95. st sess., 1963, 2328-2336 (hereinafter H.R. 405), §§ 8, 10; House Report No. 570, 2-3, 9-11.
96. H.R. 405, §§ 9-10, 13-14; House Report No. 570, 4-6, 12-13.
97. H.R. 405, § 11; House Report No. 570, 11.
98. H.R. 405, § 11; House Report No. 570, 17.
99. H.R. 405, § 10; House Report No. 570, 10-11.
100. The only role for trial courts (federal district courts) was that in the event the administrator found reasonable cause to credit the claim of discrimination, did not secure voluntary compliance, and failed to proceed with a hearing within a "reasonable time," the complainant was empowered to petition a district court for an order directing the administrator to proceed with the hearing. H.R. 405, § 10(c). The court was not empowered to adjudicate the merits of the case, but rather only to direct the administrator to hold a hearing pursuant to the terms of H.R. 405.
101. Loevy, To End All Segregation, 56-57;
102. Joseph Rauh, "The Role of the Leadership Conference on Civil Rights in the Civil Rights Struggle of 1963-64," The Civil Rights Act of 1964: The Passage of the Law that Ended Racial Segregation, ed. Robert D. Loevy (Albany: State University of New York Press, 1997), 49-75, 54-56;
103. Whalen and Whalen, The Longest Debate, 16, 36-38, 46, 66.
104. st sess., 20 February 1945; Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 1960-1972 (New York: Oxford University Press, 1990), 132.
105. Equal Employment Opportunity Commission, Legislative History of Titles VII and XI of Civil Rights Act of 1964, 5-6;
106. Bureau of National Affairs, State Fair Employment Laws and Their Administration.
107. Greenberg, Race Relations and American Law, 15-17, 114, 271;
108. see also George P. Sape and Thomas J. Hart, "Title VII Reconsidered: The Equal Employment Opportunity Act of 1972," George Washington Law Review 40 (1972): 824-889, 841;
109. st sess., 2 June 1971, 10-13.
110. Greenberg, Race Relations and American Law, 114, 154-207;
111. Greenberg, correspondence with the author, 22 August 2007;
112. Loevy, To End All Segregation, 331.
113. House Report No. 570, 17.
114. House Report No. 570, 20.
115. House Report No. 570, 19.
116. House Report No. 570, 19. See also 15, 17.
117. House Report No. 570, 15, 17.
118. Melvyn Dubofsky, The State and Labor in Modern America (Chapel Hill: University of North Carolina Press, 1994), ch. 6;
119. James A. Gross, The Reshaping of the National Labor Relations Board: National Labor Policy in Transition, 1937-1947 (Albany: State University of New York Press, 1981);
120. Seymour Scher, "The Politics of Agency Organization," Political Research Quarterly 15 (1962): 328-44.
121. House Report No. 570, 15.
122. nd sess., 21 February 1962.
123. Graham, The Civil Rights Era, 129-31.
124. House Report No. 570, 15.
125. Vaas, "Title VII: Legislative History," 434.
126. Whalen and Whalen, The Longest Debate, 13.
127. Filvaroff and Wolfinger, "The Origin and Enactment of the Civil Rights Act of 1964," 15-16.
128. Vaas, "Title VII: Legislative History," 434.
129. Loevy, To End All Segregation, 31, 53, 68-72;
130. Filvaroff and Wolfinger, "The Origin and Enactment of the Civil Rights Act of 1964," 14;
131. Whalen and Whalen, The Longest Debate, 26-27, 95.
132. Graham, The Civil Rights Era, 125-27;
133. Vaas, "Title VII: Legislative History," 35.
134. Whalen and Whalen, The Longest Debate, 42;
135. Filvaroff and Wolfinger, "The Origin and Enactment of the Civil Rights Act of 1964," 19-20.
136. Loevy, To End All Segregation, 66-73;
137. Whalen and Whalen, The Longest Debate, 40-58.
138. Filvaroff and Wolfinger, "The Origin and Enactment of the Civil Rights Act of 1964," 18;
139. Loevy, To End All Segregation, 55, 68.
140. Filvaroff and Wolfinger, "The Origin and Enactment of the Civil Rights Act of 1964," 21;
141. Graham, The Civil Rights Era, 129-32;
142. Whalen and Whalen, The Longest Debate, 56-58, 63.
143. Whalen and Whalen, The Longest Debate, 58.
144. st sess., 20 September 1963 (hereinafter "House Report No. 914"), 12.
145. Lieberman, Shaping Race Policy, 160.
146. Clifford L. Alexander, "The EEOC Solution," The Washington Post, 25 July 1989, A11;
147. Herbert Hill, "Lichtenstein's Fictions: Meany, Reuther and The 1964 Civil Rights Act," New Politics 7 (1999): 82-107, 92;
148. Chen, The Fifth Freedom, ch. 5.
149. House Report No. 914, Part II, Additional Views of William M. McCulloch, John V. Lindsay, William T. Cahill, Garner E. Shriver, Clark MacGregor, Charles McC. Mathias, and James E. Bromwell, 150.
150. House Report No. 914, Minority Report, 68.
151. House Report No. 914, Minority Report, 69 (emphasis in original).
152. House Report No. 914, 12, § 707(c).
153. House Report No. 914, 3, § 204(b).
154. House Report No. 914, 12, § 707(e).
155. Filvaroff and Wolfinger, "The Origin and Enactment of the Civil Rights Act of 1964," 22;
156. Rodriguez and Weingast, "The Positive Political Theory of Legislative History," 1463.
157. Lieberman, Shaping Race Policy, 161;
158. Rodriguez and Wein-gast, "The Positive Political Theory of Legislative History," 1474- 96;
159. John G. Stewart, "The Civil Rights Act of 1964: Tactics I," The Civil Rights Act of 1964: The Passage of the Law that Ended Racial Segregation, ed. Robert D. Loevy (Albany: State University of New York Press, 1997), 211-73;
160. Chen, The Fifth Freedom, ch. 5.
161. For a detailed accounting, see Vaas, "Title VII: Legislative History."
162. Murray Kempton, "Dirksen Delivers the Souls," The New Republic, 2 May 1964, 9.
163. Filvaroff and Wolfinger, "The Origin and Enactment of the Civil Rights Act of 1964," 31 n.11.
164. nd sess., 26 March 1964, 6449.
165. Ibid.
166. Graham, The Civil Rights Era, 146-47.
167. Stewart, "The Civil Rights Act of 1964: Tactics I," 256.
168. Comment, "Enforcement of Fair Employment Under the Civil Rights Act of 1964," The University of Chicago Law Review 32 (1965): 430-470, 432-35;
169. Vaas, "Title VII: Legislative History," 450-52;
170. Rodriguez and Weingast, "The Positive Political Theory of Legislative History," 1491-97.
171. John G. Stewart, legislative assistant to Hubert Humphrey in 1963-64, interview with the author, 29 December 2008.
172. Stewart, "The Civil Rights Act of 1964: Tactics I," 245-59.
173. See also "Dirksen Influence the Key to Successful Cloture Vote," Congressional Quarterly Weekly 15 May 1964, 947-50.
174. Stewart, "The Civil Rights Act of 1964: Tactics I," 249.
175. Graham, The Civil Rights Era, 146.
176. See also Stein, Running Steel, Running America, 85.
177. Comment, "Enforcement of Fair Employment Under the Civil Rights Act of 1964," 450-51;
178. Loevy, To End All Segregation, 258;
179. Rodriguez and Weingast, "The Positive Political Theory of Legislative History," 1492;
180. Stewart, "The Civil Rights Act of 1964: Tactics I," 211, 257-59.
181. 78 Stat. 261, § 707(a).
182. 78 Stat. 260, § 706(e);
183. Stewart, "The Civil Rights Act of 1964: Tactics I," 252.
184. John G. Stewart, legislative assistant to Hubert Humphrey in 1963-64, interview with the author, 29 December 2008.
185. nd sess., 10 June 1964, 13316, §706(e).
186. nd sess., 10 June 1964, 13316, § 706(e) and (k). The precise language of the fee shift was that fees may be awarded to "prevailing parties." In Newman v. Piggy Park Enters, Inc., 390 U.S. 400 (1968), the Supreme Court held that prevailing plaintiffs could recover fees under this language as a matter of course but that prevailing defendants could do so only in extraordinary circumstances. As discussed below, this reading of the CRA of 1964's fee shift is consistent with legislative intent.
187. 78 Stat. 260-61, § 706(e) and (k).
188. See, e.g., Lassiter v. Dept. of Social Services, 452 U.S. 18 (1981);
189. th Cir. 1965).
190. O'Connor and Epstein, "Bridging the Gap between Congress and the Supreme Court."
191. The Civil Rights Act of 1870, also known as the Fore Act 1870, created voting rights protections aimed at combating terrorism orchestrated by the Ku Klux Klan against black voters in the Reconstruction South, where states had proved unwilling or unable to control widespread violence against blacks. The statute's voting rights protections were enforceable through civil actions for monetary damages, along with attorney's fees for prevailing plaintiffs. 16 Stat. 140-41, §§ 2-4. None of the other Reconstruction civil rights laws contained a plaintiffs' fee-shifting provision. Most Reconstruction legislation governing voting rights, including the voting provisions of the CRA 1870, were repealed in 1894 after Democrats retook control of Congress. Greenberg, Race Relations and American Law, 135;
192. Bernard Schwartz, Statutory History of the United States, Civil Rights (New York: Chelsea House Publishers, 1970), Part 1, 445. Fee shifting was also employed, for example, in such major legislation as the Interstate Commerce Act of 1887, the Sherman Antitrust Act of 1890, the Securities Exchange Act of 1934, and the Fair Labor Standards Act of 1938. It was hardly a new idea in 1964.
193. 78 Stat 261.
194. st sess., 1963, Serial No. 4, Part I, 653.
195. Jack Greenberg, correspondence with the author, 22 August 2007.
196. th ed. (Saint Paul: West Law School, 2006).
197. Sovern, Legal Restraints on Racial Discrimination in Employment, 79-80;
198. Greenberg, Race Relations and American Law, 16-17, 22, 100-114, 138, 270-83;
199. Walker, "Title VII," 501-02;
200. Watson, Lion in the Lobby, 362-63.
201. David Filvaroff, special assistant in the Department of Justice in 1963-64, correspondence with author, 25 November 2008.
202. st sess., 1963, Serial No. 4, Part I, 653.
203. John G. Stewart, legislative assistant to Hubert Humphrey in 1963-64, interview with author, 29 December 2008.
204. Whalen and Whalen, The Longest Debate, 167-68;
205. Loevy, To End All Segregation, 227-30;
206. Watson, Lion in the Lobby, 598.
207. Watson, Lion in the Lobby, passim.
208. Watson, Lion in the Lobby, 606, and ch. 18 generally; Interview of Raymond Wolfinger, an aid to Senator Hubert Humphrey in 1963-64, 12/11/08.
209. nd sess., 4 June 1964, 12722.
210. nd sess., 4 June 1964, 12724.
211. nd sess., 4 June 1964, 13839.
212. nd sess., 10 June 1964, 13314-13318, § 706(e) (Title VII as introduced by Dirksen the second time); 78 Stat. at 260, § 706(e) (Title VII as passed);
213. Graham, The Civil Rights Era, 146.
214. Equal Employment Opportunity Commission, Legislative History of Titles VII and XI of Civil Rights Act of 1964, 1011.
215. nd sess., 10 June 1964,. 13314-13318, § 706(b) (Title VII as introduced by Dirksen the second time); 78 Stat. at 259-60, § 706(b) (Title VII as passed); Rodriguez and Weingast, "The Positive Political Theory of Legislative History," 1492.
216. Vaas, "Title VII: Legislative History," 454. See also 437.
217. Walker, "Title VII," 495-524, 506.
218. See also Comment, "Enforcement of Fair Employment Under the Civil Rights Act of 1964," 454, 467.
219. nd sess., 10 June 1964, 12722.
220. nd sess., 17 June 1964, 14188.
221. nd sess., 17 June 1964, 14188.
222. nd sess., 16 June 1964, 13878.
223. nd sess., 16 June 1964, 13879 (ICPSR Roll Call Number 366).
224. nd sess., 17 June 1964, 14201, 14213-14.
225. nd sess., 17 June 1964, 14214.
226. nd sess., 17 June 1964, 14213.
227. nd sess., 17 June 1964, 14214 (ICPSR Roll Call No. 406).
228. nd sess., 17 June 1964, 14182 (ICPSR Roll Call No. 396). Southerners had consistently advocated for criminal rather than civil proceedings in the civil rights context on the expectation that the higher burden of proof, coupled with trial by all-white southern juries, would make convictions all but impossible. Greenberg, Race Relations and American Law, 15;
229. Watson, Lion in the Lobby, 365.
230. nd sess., 17 June 1964, 14196 (ICPSR Roll Call No. 401).
231. nd sess., 12 June 1964, 13647-48 (ICPSR Roll Call No. 330). As with the same amendment offered with respect to Title VII, Thurmond proposed, as an alternative to civil liability, the use of ordinary criminal process with associated jury trials and proof beyond a reasonable doubt.
232. nd sess., 16 June 1964, 13934 (ICPSR Roll Call No. 383).
233. nd sess., 16 June 1964, 13904-05 (ICPSR Roll Call No. 371).
234. nd sess., 12 June 1964, 13669 (ICPSR Roll Call No. 337).
235. nd sess., 15 June 1964, 13839-40 (ICPSR Roll Call No. 361).
236. Richard Berg, "Equal Employment Opportunity Under the Civil Rights Act of 1964," Brooklyn Law Review 31 (1964): 96- 97;
237. Comment, "Enforcement of Fair Employment Under the Civil Rights Act of 1964," 430;
238. Graham, The Civil Rights Era, 189-90;
239. Skrentny, The Ironies of Affirmative Action, 121-22;
240. Stewart, "The Civil Rights Act of 1964: Tactics I," 249-52.
241. Berg, "Equal Employment Opportunity Under the Civil Rights Act of 1964," 96-97.
242. Stein, Running Steel, Running America, 85.
243. Sovern, Legal Restraints on Racial Discrimination in Employment, 79.
244. "Intensive Lobbying Marked House Civil Rights Debate." Congressional Quarterly Weekly 21 February 1964, 364-66.
245. st sess., 1963.
246. st sess., 1969 (hereinafter Senate Hearings on S. 2453), 50 (testimony of William Brown, chairman of the EEOC);
247. Graham, The Civil Rights Era, 190, 203, 235-36, 239, 422.
248. James P. Gannon, "Uphill Bias Fight: After Faltering Start, Agency Readies Attack On Job Discrimination," Wall Street Journal, 12 April 1967, 1.
249. st sess, 1972 ("Instead of cooperating with the EEOC to resolve charges against them, employers ignored the conciliation process and relied, often successfully, on the assumption that aggrieved employees would fail to litigate their claims independently.");
250. Graham, The Civil Rights Era, 235; 422-23;
251. Chen, The Fifth Freedom, ch. 5.
252. Gannon, "Uphill Bias Fight," 1.
253. Richard P. Nathan, Jobs and Civil Rights: The Role of the Federal Government in Promoting Equal Opportunity in Employment and Training (Washington: United States Government Printing Office, 1969), 76.
254. Graham, The Civil Rights Era, 236-37, 422.
255. Nathan, Jobs and Civil Rights, 74-75.
256. Senate Hearings on S. 2453, 40.
257. Senate Hearings on S. 2453, 43 (statement of Senator Ralph Yarborough);
258. 60 (statement of Clifford Alexander, member and former chairman of the EEOC);
259. 66 (statement of Wendell Freeland, member of the board of trustees of the National Urban League);
260. Graham, The Civil Rights Era, 424;
261. Nathan, Jobs and Civil Rights, 47-50, 75;
262. Sovern, Legal Restraints on Racial Discrimination in Employment, 79;
263. Chen, The Fifth Freedom, ch. 5.
264. Sape and Hart, "Title VII Reconsidered," 830-31, 835-41;
265. Chen, The Fifth Freedom, ch. 5.
266. Sape and Hart, "Title VII Reconsidered," 830-35.
267. 86 Stat. 106-07, §706(f)(1), and §707(c)-(e).
268. Sape and Hart, "Title VII Reconsidered," 841-45;
269. Chen, The Fifth Freedom, ch. 5.
270. Senate Hearings on S. 2453, 72 (statement of Jack Greenberg, director-counsel, NAACP Legal Defense and Education Fund);
271. Hill, "Lichtenstein's Fictions," 91-92;
272. Sape and Hart, "Title VII Reconsidered," 832.
273. Hill, "Lichtenstein's Fictions," 91-92.
274. Hill, "Lichtenstein's Fictions," 92.
275. st sess., 20 February 1967, 3949-52.
276. Hill, "Lichtenstein's Fictions," 91-92.
277. See, e.g., Senate Hearings on S. 2453, 72 (statement of Jack Greenberg, director-counsel, NAACP Legal Defense and Education Fund), 75 (statement of Joseph Rauh, general counsel, Leadership Conference on Civil Rights);
278. st sess., 2 June 1971 (hereinafter House Report No. 238), 11-13.
279. Paul Pierson, Dismantling the Welfare State? Reagan, Thatcher and the Politics of Retrenchment (Cambridge: Cambridge University Press, 1994), 41-42;
280. Hugh Helco, Modern Social Politics in Britain and Sweden (New Haven: Yale University Press, 1974), 305-316;
281. Edwin Amenta, Elisabeth Clemens, Jefren Olsen, Sunita Parikh, and Theda Skocpol, "The Political Origins of Unemployment Insurance in Five American States," Studies in American Political Development 2 (1987): 137-82.
282. Nathan, Jobs and Civil Rights.
283. Lieberman, Shaping Race Policy, 190.
284. Nathan, Jobs and Civil Rights, 45-46.
285. Nathan, Jobs and Civil Rights, 46 (emphasis added).
286. House Report No. 238, 12. See also Senate Hearings on S. 2453, 72 (statement of Jack Greenberg, director-counsel, NAACP Legal Defense and Education Fund).
287. Skrentny, The Ironies of Affirmative Action, 122-23;
288. Nathan, Jobs and Civil Rights, 46.
289. Nathan, Jobs and Civil Rights, 46.
290. Jack Greenberg, correspondence with the author, 22 August 2007.
291. Jack Greenberg, correspondence with the author, 22 August 2007.
292. Alfred W. Blumrosen, Black Employment and the Law (New Brunswick: Rutgers University Press, 1971), 59.
293. Senate Hearings on Equal Employment Opportunity, 4-5.
294. Nathan, Jobs and Civil Rights, 45-46, 76.
295. st sess., 1967 (hereinafter Senate Hearings on Equal Employment Opportunity), 127.
296. Senate Hearings on S. 2453, 70. See also 72.
297. Jack Greenberg, correspondence with the author, 22 August 2007.
298. Reg Murphy and Hal Gulliver, The Southern Strategy (New York: Scribner, 1971);
299. Nadine Cohodas, Strom Thurmond and the Politics of Southern Change (New York: Simon & Schuster, 1993), 385-400;
300. Dean J. Kotlowski, Nixon's Civil Rights: Politics, Principle, and Policy (Cambridge: Harvard University Press, 2001), 15-43.
301. R. Shep Melnick, "Adversarial Legalism and the Civil Rights State," paper presented at The Virtues and Vices of Legal-ism: A Conference to Honor the Work of Robert A. Kagan, Center for the Study of Law and Society, University of California, Berkeley, September 19, 2008.
302. Roy Reed, "Job-Rights Chief Quits in Dispute on Nixon's Goals," New York Times, 10 April 1969, 1;
303. Staff Reporter, "Government Aids Job Bias by Patronizing Noncompliant Firms, Rights Unit Charges," Wall Street Journal, 2 May 1969, 4.
304. Reed, "Job-Rights Chief Quits in Dispute on Nixon's Goals."
305. Staff Reporter, "Government Aids Job Bias by Patronizing Noncompliant Firms."
306. Senate Hearings on S. 2453, p. 38-59 (testimony of EEOC Chairman William Brown).
307. Jonathan Spivak, "Nixon Statement on School Desegregation Stirs Doubts About His Civil Rights Stance," Wall Street Journal, 7 July 1969, 6.
308. Graham, The Civil Rights Era, 319.
309. Rosemary Salomone, "Judicial Oversight of Agency Enforcement: The Adams and WEAL Litigation," in Justice and School Systems: The Role of the Courts in Education Litigation, ed. Barbara Flicker (Philadelphia: Temple University Press, 1990), 111-181;
310. Stephen C. Halpern, On the Limits of Law: The Ironic Legacy of Title VI of the 1964 Civil Rights Act (Baltimore: Johns Hopkins University Press, 1995), chapter 4.
311. The fee shift was codified at 20 U.S.C. § 1617.
312. For a discussion of the winding legislative history of this fee provisions, see Bradley v. School Board of City of Richmond, 416 U.S. 696, 716 n. 23 (1974).
313. Senate Report No. 61, 92nd Cong, 1st sess., 1971, p. 25.
314. Senate Hearings on S. 2453, 69 (statement of Jack Greenberg, director-counsel, NAACP Legal Defense and Education Fund).
315. Senate Hearings on S. 2453, 69.
316. Stein, Running Steel, Running America, 116. See also 113-20;
317. Skrentny, The Ironies of Affirmative Action, 161-66;
318. Paul Frymer, "Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935-85, American Political Science Review, 97 (2003): 483-499.
319. Eskridge, "Reneging on History?," 646-50;
320. Frymer, "Acting When Elected Officials Won't."
321. George Rutherglen, "Title VII Class Actions," University of Chicago Law Review 47 (1980): 688-741.
322. Arthur R. Miller, "Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the 'Class Action Problem'," Harvard Law Review 92 (1979): 664-694, 674-75;
323. "Developments in the Law: Class Actions," Harvard Law Review 89 (1976): 1318-1644, 1353-54.
324. Frymer, Black and Blue, ch. 4.
325. Graham, The Civil Rights Era, 129-30, 430-31.
326. Senate Hearings on S. 2453, 70.
327. Senate Hearings on S. 2453, 70-71.
328. Senate Hearings on S. 2453, 75.
329. Senate Hearings on S. 2453, 64-68 (statement of Wendell Freeland, member of the Board of Directors of the National Urban League), 77-86 (statement of Clarence Mitchell, director of the Washington Bureau of the NAACP).
330. Hill, "Lichtenstein's Fictions," 92.
331. Graham, The Civil Rights Era, 431.
332. Senate Hearings on S. 2453, 66-67 (statement of Wendell Freeland, member of the Board of Directors of the National Urban League), 69 (statement of Jack Greenberg, director-counsel, NAACP Legal Defense and Education Fund), 76 (statement of Joseph Rauh, general counsel, Leadership Conference on Civil Rights), 81-82 (statement of Clarence Mitchell, director of the Washington Bureau of the NAACP).
333. Jack Greenberg, correspondence with the author, 22 August 2007.
334. Rutherglen, "Title VII Class Actions," 713 (emphasis added).
335. Sape and Hart, "Title VII Reconsidered," 875-78.
336. nd sess., 2/6/ 1968, 2270-73.
337. nd sess., 6 February 1968, 2271.
338. Jean E. Dubofsky, "Fair Housing: A Legislative History and a Perspective," Washburn Law Journal 8 (1969): 149-66, 156.
339. nd sess., 20 February 1968, 3427.
340. Dubofsky, "Fair Housing: A Legislative History and a Perspective," 156.
341. Dubofsky, "Fair Housing: A Legislative History and a Perspective," 156-57;
342. Charles Lamb, "Congress, the Courts, and Civil Rights: The Fair Housing Act of 1968 Revisited," Villanova Law Review 27 (1982): 1115-1162, 1124-25;
343. Leland B. Ware, "New Weapons for an Old Battle: The Enforcement Provisions of the 1988 Amendments to the Fair Housing Act," Administrative Law Journal, 7 (1993): 59-119, 73-74.
344. nd sess., 29 February 1968, 4670 (reprinting Washington Post Editorial of February 29, 1968). Richard Nixon also urged that passage of the Fair Housing Act would serve Republican interests in the upcoming election. Graham, The Civil Rights Era, 303.
345. nd sess., 28 February 1968, 4575.
346. Dubofsky, "Fair Housing: A Legislative History and a Perspective," 156-57.
347. nd sess., 28 February 1968, 4572.
348. nd sess., 28 February 1968, 4573.
349. nd sess.,4March 1968, 4960.
350. nd sess., 6 March 1968, 5514.
351. Ibid.
352. 102 Stat. 1619, 100 P.L. 430.
353. th Cir. 1978);
354. th Cir. 1977);
355. Clemons v. Runck, 402 F.Supp. 863 (S.D. Oh. 1975).
356. 20 U.S.C. § 1617.
357. For a discussion of the legislative history of this fee provisions, see Bradley v. School Board of City of Richmond, 416 U.S. 696, 716 n. 23 (1974).
358. Derfner, "Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976," 657.
359. 90 Stat. 2641, 95 P.L. 559.
360. th Cir. 1970);
361. th Cir. 1970).
362. Monell v. City of New York Department of Social Services, 436 U.S. 658 (1978).
363. nd ed. (Saint Paul: Thomson/West, 1994).
364. Paul Pierson, Dismantling the Welfare State?, 40. See also Margaret Weir and Theda Skocpol, "State Structures and the Possibilities for 'Keynesian' Responses to the Great Depression in Sweden, Britain, and the United States," Bringing the State Back In, ed. Peter Evans, Dietrich Rueschemeyer, and Theda Skocpol (Cambridge: Cambridge University Press, 1985), 107-63, 143-44.
365. Armand Derfner, "Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976," Urban Lawyer 37 (2005): 653-661, 656;
366. O'Connor and Epstein, "Bridging the Gap between Congress and the Supreme Court," 241.
367. Rutherglen, "Title VII Class Actions," 688.
368. rd Cong., 1st sess., 1973 (testimony of Armand Derfner), 1112-13.
369. O'Connor and Epstein, "Bridging the Gap between Congress and the Supreme Court," 241.
370. Robert B. McKay, Nine for Equality Under Law: Civil Rights Litigation. A Report to the Ford Foundation (New York: Ford Foundation, 1977);
371. O'Connor and Epstein, "Bridging the Gap between Congress and the Supreme Court," 240.
372. Derfner, "Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976," 656;
373. Armand Defner, correspondence with the author, 26 July 2007.
374. Nathan, Jobs and Civil Rights, 74-75.
375. Graham, The Civil Rights Era, 422.
376. The figures for 1970 and after come from Federal Court Cases: Integrated Data Base, 1970-2000, maintained by the Inter-University Consortium for Political and Social Research. Cases coded 442 ("civil rights, employment") in this dataset include suits filed under Title VII; the Age Discrimination in Employment Act of 1967; the Rehabilitation Act of 1973, which prohibited certain forms of disability discrimination in employment by the federal government or by federal contractors; and employment discrimination claims filed under the Civil Rights Acts of 1866 and 1871. A content analysis of a sample of cases coded "civil rights, employment" during this period shows that approximately 80 percent were Title VII claims. John J. Donohue III and Peter Siegel-man, "The Changing Nature of Employment Discrimination Litigation," Stanford Law Review 43 (1991) 983-1033, 885 n.3. This is how I estimated the figures presented.
377. It is possible that the delay was caused, in part, by uncertainty about the legal standard courts would use in deciding whether to award attorney's fees because the statute stipulated that courts "may" make such an award. In 1968 the Supreme Court held unanimously that winning plaintiffs would automatically get fees unless special circumstances dictated otherwise. This bolstered plaintiffs' lawyers' confidence that they would be paid if they won civil rights cases under statutes with fee-shifting provisions. Derfner, "One Giant Step," 442;
378. Derfner, "Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976," 654. Amendments in 1966 to the class-action provisions in the Federal Rules of Civil Procedure, which increased judges' discretion to recognize plaintiff classes, and liberal construction of those provisions by federal courts, likely also contributed to the increase, though individual (non-class) claims have always constituted the overwhelming majority of Title VII claims. George Rutherglen, "Title VII Class Actions," University of Chicago Law Review 47 (1980): 688-741;
379. Federal Court Cases: Integrated Data Base, 1970-2000, maintained by the Inter-University Consortium for Political and Social Research. Finally, some of the increase in filings also can be attributed to the EEOA of 1972, which extended Title VII coverage to (i) employers with between 15 and 24 employees (the original law only covered employers with 25 or more employees); (ii) employees of federal and state governments, and (iii) employees of educational institutions. These incremental increases in the covered workforce could only account for a small share of the nearly tenfold increase in total Title VII filings between 1970 and 1975.
380. The litigation figures come from Federal Court Cases: Integrated Data Base, 1970-2000, maintained by the Inter-University Consortium for Political and Social Research. The population figures come from linear interpolation between the 1970 and 1980 United States Census.
381. Derfner, "One Giant Step," 441-451, 444-45.
382. Derfner, "One Giant Step," 445.
383. st sess., 1973 (testimony of Armand Derfner), 1113.
384. McKay, Nine for Equality Under Law, 8, 13.
385. Bill Crider, "Civil Rights Turns to Gold Lode for Southern Lawyers," Washington Post 4 April 1976, 59.
386. th Cir. 1984);
387. Vymetalik v. E.E.O.C., 1987 WL 19005, 2 n.3. (D. D.C. 1987);
388. Johnson v. NCT Services, 631 F. Supp. 606, 607 n.1; (D. Hi. 1986);
389. Sol v. I.N.A. Ins. Co., 414 F. Supp. 29, 30 (E.D. Pa. 1976).
390. In re Nine Applicants, 475 F. Supp. 87 (N.D. Al.1979);
391. Brooks v. Central Bank of Birmingham, 1982 WL 365 (N.D. Al. 1982).
392. Derfner, "Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976," 656.
393. See, e.g., Stanford Daily v. Zurcher, 366 F.Supp. 18 (D.C. Ca. 1973) (plaintiff successfully arguing for the availability of attorney's fees under the CRA of 1871, drawing analogy to the fee provisions in the CRA of 1964);
394. th Cir. 1972) (plaintiff successfully arguing for the availability of attorney's fees under the CRA of 1866, drawing analogy to the fee provisions in the CRA of 1964);
395. Derfner, "One Giant Step."
396. Ibid.
397. 421 U.S. 240 (1975).
398. Derfner, "Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976," 653-58.
399. nd sess., 29 June 1976, 2.
400. st sess., 1975.
401. Berg, "Equal Employment Opportunity Under the Civil Rights Act of 1964," 96-97.
402. Graham, The Civil Rights Era, 424;
403. Greenberg, Race Relations and American Law, 16, 101, 138, 271;
404. Nathan, Jobs and Civil Rights, 47-50, 75;
405. Sovern, Legal Restraints on Racial Discrimination in Employment, 79;
406. Stein, Running Steel, Running America, 85;
407. Watson, Lion in the Lobby, 362-63;
408. Senate Hearings on S. 2453, 43 (statement of Senator Ralph Yarborough), 60 (statement of Clifford Alexander, member and former chairman of the EEOC), 66 (statement of Clarence Mitchell, director of the Washington Bureau of the NAACP).
409. Annual Report of the Administrative Office of the United States Courts, Table C-2.
410. Senate Report No. 1011, 4.
411. nd sess., 21 September 1976, 31471.
412. nd sess., 29 September 1976, 33313.
413. nd sess., 29 September 1976, 33314.
414. nd sess., 15 September 1976 (hereinafter House Report No. 1558), 1.
415. nd sess., 21 September 1976, 31472.
416. nd sess., 29 September 1976, 33313.
417. nd sess., 1 October 1976, 35127.
418. nd sess., 1 October 1976, 35128.
419. nd sess., 29 June 1976 (hereinafter Senate Report No. 1011), 4.
420. nd sess., 21 September 1976, 31471.
421. nd sess., 21 September 1976, 31479.
422. nd sess., 21 September 1976, 31472.
423. nd sess., 29 September 1976, 33314.
424. nd sess., 21 September 1976, 31473-74.
425. nd sess., 28 September 1976, 32933-34.
426. nd sess., 1 October 1976, 35130 (ICPSR House Roll Call No. 1280);
427. nd sess., 29 September 1976, 33315 (ICPSR Senate Roll Call No. 1298).
428. nd sess., 22 September 1976, 31835 (ICPSR Senate Roll Call No. 1248) (Helms [R-NC] amendment to exempt state and local governments from the bill);
429. nd sess., 22 September 1976, 31858 (ICPSR Senate Roll Call No. 1251) (Thurmond [R-SC] amendment to prohibit application of the Act to busing cases);
430. nd sess., 27 September 1976, 32388 (ICPSR Senate Roll Call No. 1270) (Allen [D-AL] amendment to restrict fee awards to circumstances in which opposing party acted in a "contumacious or vexatious manner");
431. nd sess., 27 September 1976, 32394 (ICPSR Senate Roll Call No. 1271) (Thurmond [R-SC] amendment to provide for payment of attorney's fees by plaintiffs to defendants if the court finds the action to be frivolous);
432. nd sess., 24 September 1976, 32396 (ICPSR Senate Roll Call No. 1273) (Helms [R-NC] amendment to provide that attorney's fees could only be awarded against a party that behaved with bad faith);
433. nd sess., 28 September 1976, 32927 (ICPSR Senate Roll Call No. 1282) (Allen [D-AL] amendment to eliminate the Civil Rights Act of 1866 from coverage by the bill);
434. nd sess., 28 September 1976, 32934 (ICPSR Senate Roll Call No. 1289) (Helms [R-NC] amendment to eliminate the Civil Rights Act of 1866 from coverage by the bill).
435. nd sess., 27 September 1976, 32397-98 (ICPSR Senate Roll Call No. 1274) (Allen [D-AL] amendment to bar the award of attorney's fees under the Equal Employment Opportunity Act of 1972);
436. nd sess., 28 September 1976, 32391 (ICPSR Senate Roll Call No. 1285) (Scott [R-VA] amendment to bar the award of attorney's fees against federal or state governments under Titles II or VII of the CRA of 1964, or the CRA of 1965, as amended in 1975);
437. nd sess., 28 September 1976, 32933 (ICPSR Senate Roll Call No. 1287) (Helms [R-NC] amendment to create a mandatory award of attorney's fees to prevailing defendants under Titles II and VII of the CRA of 1964, the CRA of 1965, and the Reconstruction civil rights laws).
438. nd sess., 21 September 1976, 31476 (ICPSR Senate Roll Call No. 1236) (Kennedy [D-MA] amendment to expand application of the act to sex or blindness discrimination in educational institutions receiving federal funds).
439. nd sess., 28 September 1976, 32931 (ICPSR Senate Roll Call No. 1285) (Scott [R-VA] amendment to bar the award of attorney's fees against federal or state governments under Titles II or VII of the CRA of 1964, or the CRA of 1965, as amended in 1975);
440. nd sess., 28 September 1976, 32933 (ICPSR Senate Roll Call No. 1287) (Helms [R-NC] amendment to create a mandatory award of attorney's fees to prevailing defendants under Titles II and VII of the CRA of 1964, the CRA of 1965, and the Reconstruction civil rights laws).
441. nd sess., 1 October 1976, 35130 (ICPSR House Roll Call No. 1280);
442. nd sess., 29 September 1976, 33315 (ICPSR Senate Roll Call No. 1298).
443. st sess., 1973;
444. nd sess., 29 June 1976, 2.
445. The NAACP's lead lobbyist Clarence Mitchell called a meeting of leaders of civil rights groups after the Alyeska decision, and at the meeting civil rights groups agreed to place the goal of obtaining a statutory fee provision to govern all civil rights laws at the top of their legislative agenda. Carrying out this agenda, lobbyist Mitchell approached congressional Democrats and got the bill introduced that led to the CRAFAA of 1976. Derfner, "Background and Origin of the Civil Rights Attorney's Fee Awards Act of 1976," 653-58;
446. Armand Derfner, correspondence with the author, 19 September 2007.
447. See, e.g., Stein, Running Steel, Running America, 84-85;
448. Chen, The Fifth Freedom, ch. 5;
449. Rodriguez and Weingast, "The Positive Political Theory of Legislative History," 1489-96;
450. Skrentny, The Ironies of Affirmative Action, 120-25;
451. but also see Lieberman, Shaping Race Policy;
452. Frymer, Black and Blue, ch. 4.
453. As I suggested in the discussion of the changes made in the Senate, if one were to look only at those Republican amendments, the case is stronger that Republicans created a much more interventionist enforcement framework than would have occurred if the Senate had just accepted the House-passed version of Title VII. This is because cease-and-desist was already gone by the time the bill reached the Senate, and all Dirksen extracted in exchange for the private enforcement regime that he gave was to move the governmental right to sue from the EEOC to the Justice Department, and to limit the right to initiate suit to pattern or practice claims. This governmental right to sue, in both individual and pattern or practice claims, was restored to the EEOC in the EEOA of 1972, so antiregulatory Republicans were unable to retain the regulation-weakening benefits that they had received in exchange for the private enforcement regime that Dirksen created. However, it must be acknowledged as well that the move for cease-and-desist between 1965 and 1972, which nearly succeeded, may well have been stronger in the absence of private litigation to shoulder the enforcement burden. Thus, assessing the ultimate effects of Dirksen's enforcement bargain is a quite speculative endeavor.
454. The fraction was between 3 and 6 percent between 1970 and 1975. See Annual Reports of the Equal Employment Opportunity Commission, 1970-1975, and Federal Court Cases: Integrated Data Base, 1970-2000, maintained by the Inter-University Consortium for Political and Social Research. Whereas the fraction grew in later years, it has remained the case that a very large majority of EEOC charges are not prosecuted in federal court.