From Disparate Impact to Protecting White Men and Their Interests: The Early Development of Title VII

The early development of employment discrimination law is often perceived as a string of important victories for plaintiffs, although the real story is quite different. Although there were solid victories, including the early creation of the disparate impact theory, the Supreme Court continually refused to adopt a more progressive judicial vision that had been percolating in the lower courts, a vision that imposed far greater scrutiny on employers and their practices. In contrast, the Supreme Court quickly moved from questioning the validity of employer practices to deferring to employer judgments, even when those judgments produced a workplace where Black workers were generally absent or holding the least desirable jobs. And as the first decade of case development progressed, the Supreme Court became increasingly worried about the plight of white workers, ultimately approving of seniority systems that effectively locked Black workers into the jobs they had held prior to the passage of the 1964 Civil Rights Act. This Article explores the first decade of employment discrimination law’s development by looking not only at Supreme Court opinions but also at what lower courts were doing. Additionally, this Article incorporates insights from the papers of Justice Powell to demonstrate how the Court moved from a short-lived protective stance to one that seemed more focused on the interests of white workers.