Hostname: page-component-cd9895bd7-lnqnp Total loading time: 0 Render date: 2024-12-26T18:51:01.106Z Has data issue: false hasContentIssue false
  • English
  • Français

Equal Employment Opportunity and the Mobilization of Law

Published online by Cambridge University Press:  02 July 2024

Paul Burstein  and
Kathleen Monaghan
Rights & Permissions [Opens in a new window]

Abstract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

During the 1960s and 1970s the American social movement for equal employment opportunity (EEO) succeeded in getting Congress and the courts to prohibit discrimination in employment on the basis of race, religion, national origin, and sex. We believe that the effectiveness of EEO laws depends not just upon their passage, however, but also upon their continuing successful mobilization. This is the first article to describe quantitatively the extent and outcomes of the mobilization of EEO laws at the appellate court level. It shows that mobilization is increasing; that the federal government and various interest groups are actively involved in the enforcement process; that much is at stake in many EEO cases; that alleged victims of discrimination win their court cases over half the time; and that reverse discrimination in EEO does not seem to be a serious problem.

Type
Research Article
Information
Law & Society Review , Volume 20 , Issue 3 , 1986 , pp. 355 - 388
Copyright
Copyright © 1986 The Law and Society Association

Footnotes

The authors would like to thank Elizabeth Bartholet, Robert Belton, James Blumstein, Claude Fischer, Jack Gibbs, Florence Katz, and David Knoke for helpful advice and comments; Peter Harris and Jan Grigsby for help in the development of the coding scheme and in data collection; and Peter Wood for assistance in data collection. Work on this paper was supported by the National Science Foundation, the Howard Foundation, and the Vanderbilt University Research Council.

References

References

ABEL, Emily (1981) “Collective Protest and the Meritocracy: Faculty Women and Sex Discrimination Lawsuits,” 7 FS: Feminist Studies 505.Google Scholar
ADMINISTRATIVE OFFICE: ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS (1965-84) Annual Report of the Director. Washington, DC: United States Government Printing Office.Google Scholar
BARTHOLET, Elizabeth (1982) “Application of Title VII to Jobs in High Places,” 95 Harvard Law Review 947.Google Scholar
BAUM, Lawrence, Sheldon, GOLDMAN, and Austin, SARAT (1981-82) “The Evolution of Litigation in the Federal Courts of Appeals, 1895-1975,” 16 Law & Society Review 291.Google Scholar
BECKER, Gary (1971) The Economics of Discrimination, 2nd Ed. Chicago: University of Chicago Press.Google Scholar
BELL, Derrick Jr. (1977) “Forward: Equal Employment Law and the Continuing Need for Self-Help,” 8 Loyola University of Chicago Law Review 681.Google Scholar
BELLER, Andrea (1982) “The Impact of Equal Opportunity Policy on Sex Differentials in Earnings and Occupation,” 72 American Economic Review {Papers and Proceedings) 171.Google Scholar
BELTON, Robert (1978) “A Comparative Review of Public and Private Enforcement of Title VII of the Civil Rights Act of 1964,” 31 Vanderbilt Law Review 905.Google Scholar
BELTON, Robert (1981) “Discrimination and Affirmative Action,” 59 North Carolina Law Review 531.Google Scholar
BENNETT, Joel, and Alice, COVINGTON (1982) “Changes Needed in the Federal Employment Discrimination Laws,” 25 Howard Law Journal 273.Google Scholar
BLACK, Donald (1976) The Behavior of Law. New York: Academic Press.Google Scholar
BLUMROSEN, Alfred (1971) Black Employment and the Law. New Brunswick: Rutgers University Press.Google Scholar
BONFIELD, Arthur (1967) “The Origin and Development of American Fair Employment Legislation,” 52 Iowa Law Review 1043.Google Scholar
BROWN, Charles (1982) “The Federal Attack on Labor Market Discrimination: The Mouse That Roared?” in Ehrenberg, R. (ed.), Research in Labor Economics, Vol. 5. Greenwich, CT: JAI Press.Google Scholar
BUCKLEY, Michael (1980) “Comment: Attorney's Fees in Damage Actions under the Civil Rights Attorney's Fees Awards Act of 1976,” 47 University of Chicago Law Review 332.Google Scholar
BUREAU OF NATIONAL AFFAIRS (1969–84) Fair Employment Practice Cases, Vols. 1–33. Washington, DC: Bureau of National Affairs.Google Scholar
BURSTEIN, Paul (1979) “Electoral Competition and Changes in the Party Balance in the U.S. Congress, 1789–1977,” 8 Social Science Research 105.Google Scholar
BURSTEIN, Paul (1985a) Discrimination, Jobs, and Politics: The Struggle for Equal Employment Opportunity in the United States since the New Deal. Chicago: University of Chicago Press.Google Scholar
BURSTEIN, Paul (1985b) “On Equal Employment Opportunity and Affirmative Action,” in Marrett, C. and Leggon, C. (eds.), Research in Race and Ethnic Relations, Vol. 4. Greenwich, CT: JAI Press.Google Scholar
CARMINES, Edward, and James, STIMSON (1981) “Issue Evolution, Population Replacement and Normal Partisan Change,” 75 American Political Science Review 107.Google Scholar
CARTWRIGHT, Bliss (1975) “Conclusions: Disputes and Reported Cases,” 9 Law & Society Review 369.Google Scholar
CHAMBLISS, William, and Robert, SEIDMAN (1982) Law, Order, and Power, 2nd ed. Reading, MA: Addison-Wesley.Google Scholar
CHISWICK, Barry (1983) “The Earnings and Human Capital of American Jews,” 18 Journal of Human Resources 313.Google Scholar
CROWE, Patricia Ward (1978) “Complainant Reactions to the Massachusetts Commission against Discrimination,” 12 Law & Society Review 217.Google Scholar
DORN, Edwin (1979) Rules and Racial Equality. New Haven: Yale University Press.Google Scholar
FEATHERMAN, David, and Robert, HAUSER (1976) “Sexual Inequalities and Socioeconomic Achievement in the U.S., 1962–1973,” 41 American Sociological Review 462.Google Scholar
FEINBERG, William E. (1984) “At a Snail's Pace: Time to Equality in Simple Models of Affirmative Action Programs,” 90 American Journal of Sociology 168.Google Scholar
FISS, Owen (1971) “A Theory of Fair Employment Laws,” 38 University of Chicago Law Review 235.Google Scholar
FRIEDMAN, Lawrence, KAGAN, Robert, CARTWRIGHT, Bliss, and Stanton, WHEELER (1981) “State Supreme Courts: A Century of Style and Citation,” 33 Stanford Law Review 773.Google Scholar
FULLINWIDER, Robert (1980) The Reverse Discrimination Controversy. Totowa, NJ: Rowman and Littlefield.Google Scholar
GALANTER, Marc (1974) “Why the ‘Haves’ Come Out Ahead,” 9 Law & Society Review 95.Google Scholar
GALLUP POLL (1978) Public Opinion.Google Scholar
GALLUP POLL (1982) Gallup Report (August) 203.Google Scholar
GAMSON, William, and Andre, MODIGLIANI (1984) “The Changing Culture of Affirmative Action,” Unpublished. Department of Sociology, Boston College.Google Scholar
GLAZER, Nathan (1978) Affirmative Discrimination. New York: Basic Books.Google Scholar
GOLDBERG, S. (1958) Introduction to Difference Equations. New York: Wiley.Google Scholar
GROSSMAN, Joel, SARAT, Austin, KRITZER, Herbert, McDOUGAL, Stephen, BUMILLER, Kristin, and Richard, MILLER (1982) “Dimensions of Institutional Participation: Who Uses the Courts, and How?” 44 Journal of Politics 85.Google Scholar
HANDLER, Joel (1978) Social Movements and the Legal System: A Theory of Law Reform and Social Change. New York: Academic Press.Google Scholar
HARRIS, Peter (1985) “Difficult Cases and the Display of Authority,” 1 Journal of Law, Economics, and Organization 209.Google Scholar
HAZARD, Geoffrey Jr. (1965) “After the Trial Court—The Realities of Appellate Review,” in Jones, H.W. (ed.), The Courts, the Public, and the Law Explosion. Englewood Cliffs, NJ: Prentice-Hall.Google Scholar
HILL, Herbert (1977) Black Labor and the American Legal System. Washington, DC: Bureau of National Affairs.Google Scholar
HIRSCHMAN, Charles, and Morrison, WONG (1984) “Socioeconomic Gains of Asian Americans, Blacks, and Hispanics: 1960-1976,” 90 American Journal of Sociology 584.Google Scholar
HOUT, Michael (1984) “Occupational Mobility of Black Men: 1962 to 1973,” 49 American Sociological Review 308.Google Scholar
HOWARD, J.W. (1981) Courts of Appeals in the Federal Judicial System. Princeton: Princeton University Press.CrossRefGoogle Scholar
HOWARD-MARTIN, Jane (1983) “A Critical Analysis of Judicial Opinions in Professional Employment Discrimination Cases,” 26 Howard Law Journal 723.Google Scholar
HUGHES, James, JENNINGS, David, MAGUIRE, Charles Jr., SHAIN, Betsy, TOBIN, Jay, and Jay, WHITTLE Jr. (1982) “Back Pay in Employment Discrimination Cases,” 35 Vanderbilt Law Review 893.Google Scholar
JENCKS, Christopher (1985) “Affirmative Action for Blacks,” 28 American Behavioral Scientist 731.Google Scholar
JENKINS, J. Craig (1983) “Resource Mobilization Theory and the Study of Social Movements,” 9 Annual Review of Sociology 527.Google Scholar
JONES, Harry W. (1969) The Efficacy of Law. Evanston, IL: Northwestern University Press.Google Scholar
KAGAN, Robert, CARTWRIGHT, Bliss, FRIEDMAN, Lawrence, and Stanton, WHEELER (1977) “The Business of State Supreme Courts, 1870–1970,” 30 Stanford Law Review 121.Google Scholar
KLUEGEL, James (1978) “The Causes and Cost of Racial Exclusion from Job Authority,” 43 American Sociological Review 285.Google Scholar
KLUEGEL, James, and Eliot, SMITH (1981) “Beliefs about Stratification,” 7 Annual Review of Sociology 29.Google Scholar
Eliot, SMITH (1982) “Whites' Beliefs about Blacks' Opportunity,” 47 American Sociological Review 518.Google Scholar
KRIPPENDORFF, Klaus (1980) Content Analysis: An Introduction to Its Methodology. Beverly Hills: Sage.Google Scholar
KRISLOV, Samuel (1963) “The Amicus Curiae Brief: From Friendship to Advocacy,” 72 Yale Law Journal 694.Google Scholar
LAND, Kenneth, and Marcus, FELSON (1976) “A General Framework for Building Dynamic Macro Social Indicator Models, Including an Analysis of Changes in Crime Rates and Police Expenditures” 82 American Journal of Sociology 565.Google Scholar
LEHR, Richard (1983) “EEOC Case-Handling Procedures: Problems and Solutions,” 34 Alabama Law Review 241.Google Scholar
LEONARD, Jonathan (1984) “Antidiscrimination or Reverse Discrimination: The Impact of Changing Demographics, Title VII, and Affirmative Action on Productivity,” 19 Journal of Human Resources 145.Google Scholar
LEWIS, Anthony (1985) “Blatant and Continuous,” New York Times (May 19) E21.Google Scholar
LIEBERSON, Stanley (1980) A Piece of the Pie. Berkeley: University of California Press.CrossRefGoogle Scholar
LIPSET, Seymour Martin (1979) The First New Nation. New York: Norton.Google Scholar
MACAULAY, Stewart (1979) “Lawyers and Consumer Protection Laws,” 14 Law & Society Review 115.Google Scholar
MALTZ, Earl (1983) “Title VII and Upper-Level Employment—A Response to Professor Bartholet,” 77 Northwestern University Law Review 776.Google Scholar
MAYHEW, Leon (1968) Law and Equal Opportunity. Cambridge, MA: Harvard University Press.CrossRefGoogle Scholar
McINTOSH, Wayne (1983) “Private Use of a Public Forum: A Long-Range View of the Dispute-Processing Role of Courts,” 77 American Political Science Review 991.Google Scholar
MILLER, Richard, and Austin, SARAT (1980-81) “Grievances, Claims, and Disputes: Assessing the Adversary Culture,” 15 Law & Society Review 525.Google Scholar
MILLS, Trudy (1981) “On the Use of Equal Employment Laws,” 24 Pacific Sociological Review 196.Google Scholar
MURPHY, William, Julius, GETMAN, and James E., JONES Jr. (1979) Discrimination in Employment, 4th ed. Washington, DC: Bureau of National Affairs.Google Scholar
NORTON, Eleanor Holmes (1981) “An Assessment from an Enforcement Perspective,” in United States Commission on Civil Rights, Consultations on the Affirmative Action Statement of the U.S. Commission on Civil Rights. Washington, DC: United States Commission on Civil Rights.Google Scholar
O'CONNOR, Karen, and Lee, EPSTEIN (1981–82) “Amicus Curiae Participation in U.S. Supreme Court Litigation: An Appraisal of Hakman's Folklore,” 16 Law & Society Review 311.Google Scholar
Lee, EPSTEIN (1982) “The Importance of Interest Group Involvement in Employment Discrimination Litigation,” 25 Howard Law Journal 709.Google Scholar
Lee, EPSTEIN (1983) “Sex and the Supreme Court: An Analysis of Judicial Support for Gender-Based Claims,” 64 Social Science Quarterly 327.Google Scholar
PARMERLEE, Marcia, Janet, NEAR, and Tamila, JENSEN (1982) “Correlates of Whistle-Blowers' Perceptions of Organizational Retaliation,” 27 Administrative Science Quarterly 17.Google Scholar
PEAR, Robert (1985) “Judges Continuing to Uphold Quotas,” New York Times, national edition (February 10) 1.Google Scholar
POLE, J.R. (1978) The Pursuit of Equality in American History. Berkeley: University of California Press.Google Scholar
PRAGER, Jeffrey (1982) “Equal Opportunity and Affirmative Action: The Rise of New Social Understandings,” 4 Research in Law, Deviance, and Social Control 191.Google Scholar
PRIEST, George (1980) “Selective Characteristics of Litigation,” 9 Journal of Legal Studies 399.Google Scholar
PRIEST, George, and Benjamin, KLEIN (1984) “The Selection of Disputes for Litigation,” 13 Journal of Legal Studies 1.Google Scholar
RAGIN, Charles, Susan, MAYER, and Kriss, DRASS (1984) “Assessing Discrimination: A Boolean Approach,” 49 American Sociological Review 221.Google Scholar
RATNER, Ronnie S. (1980) “The Policy and the Problem,” in Ratner, Ronnie S. (ed.), Equal Employment Policy for Women. Philadelphia: Temple University Press.Google Scholar
REYNOLDS, William, and William, RICHMAN (1981) “An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform,” 48 University of Chicago Law Review 573.Google Scholar
ROTHSCHILD, Michael, and Gregory, WERDEN (1982) “Title VII and the Use of Employment Tests: An Illustration of the Limits of the Judicial Process,” 11 Journal of Legal Studies 261.Google Scholar
SABATIER, Paul (1975) “Social Movements and Regulatory Agencies,” 6 Policy Sciences 301.Google Scholar
SCHEINGOLD, Stuart (1974) The Politics of Rights. New Haven: Yale University Press.Google Scholar
SCHLEI, Barbara Lindemann, and Paul, GROSSMAN (1983) Employment Discrimination Law, 2nd ed. Washington, DC: Bureau of National Affairs.Google Scholar
SCOTT, William (1955) “Reliability of Content Analysis: The Case of Nominal Scale Coding,” 19 Public Opinion Quarterly 321.Google Scholar
SEGAL, Jeffrey A. (1984) “Predicting Supreme Court Cases Probabilistically,” 78 American Political Science Review 891.Google Scholar
SMITH, Eliot, and James, KLUEGEL (1984) “Beliefs and Attitudes about Women's Opportunity,” 47 Social Psychology Quarterly 81.Google Scholar
SOVERN, Michael (1966) Legal Restraints on Racial Discrimination in Employment. New York: Twentieth Century Fund.Google Scholar
SOWELL, Thomas (1981) Markets and Minorities. New York: Basic Books.Google Scholar
STEEL, Lewis (1983) “Why Attorneys Won't Take Civil Rights Cases,” 236 The Nation 362.Google Scholar
STERN, Robert, Walter, GOVE, and Omer, GALLE (1976) “Equality for Blacks and Women: An Essay on Relative Progress,” 56 Social Science Quarterly 664.Google Scholar
STIDHAM, Ronald, Robert, CARP, and C.K., ROWLAND (1983) “Women's Rights before the Federal District Courts, 1971-1977,” 11 American Politics Quarterly 205.Google Scholar
STINCHCOMBE, Arthur (1978) Theoretical Methods in Social History. New York: Academic Press.Google Scholar
ULMER, S. Sidney (1984) “The Supreme Court's Certiorari Decisions,” 78 American Political Science Review 901.Google Scholar
U.S. EEOC: UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (1966–84) Annual Report. Washington, DC: United States Government Printing Office.Google Scholar
U.S. EEOC: UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (1969a) Legislative History of Titles VII and XI of the Civil Rights Act of 1964. Washington, DC: United States Government Printing Office.Google Scholar
U.S. OMB: UNITED STATES OFFICE OF MANAGEMENT AND BUDGET (1971–82, 1985) Budget of the United States Government. Special Analysis J: Civil Rights. Washington, DC: United States Government Printing Office.Google Scholar
U.S. SENATE: UNITED STATES SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE (1972) Legislative History of the Equal Employment Opportunity Act of 1972. Washington, DC: United States Government Printing Office.Google Scholar
WALLACE, Phyllis (1973) “Employment Discrimination: Some Policy Considerations,” in Ashenfelter, O. and Rees, A. (eds.), Discrimination in Labor Markets. Princeton: Princeton University Press.Google Scholar
Rees, A. (1976) Equal Employment Opportunity and the AT&T Case. Cambridge, MA: MIT Press.Google Scholar
WANNER, Craig (1975) “The Public Ordering of Private Relations: Part Two, Winning Civil Court Cases,” 9 Law & Society Review 293.Google Scholar
WARREN, Jerry (1982) “Title VII of the Civil Rights Act of 1964 and Class Action Litigation,” 34 Baylor Law Review 177.Google Scholar
WOLF, Wendy, and Neil, FLIGSTEIN (1979) “Sex and Authority in the Workplace: The Causes of Sexual Equality,” 44 American Sociological Review 235.Google Scholar
ZEMANS, Frances Kahn (1983) “Legal Mobilization: The Neglected Role of the Law in the Political System,” 77 American Political Science Review 690.Google Scholar

Cases Cited

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975).Google Scholar
Griggs v. Duke Power Co., 401 U.S. 424 (1971).Google Scholar
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).Google Scholar
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).Google Scholar
Teamsters v. United States, 431 U.S. 324 (1977).Google Scholar
United Steelworkers of America v. Weber, 443 U.S. 193 (1979).Google Scholar

Statutes Cited

Civil Rights Act of 1866 (42 U.S.C. § 1981).Google Scholar
Civil Rights Act of 1871 (42 U.S.C. § 1983).Google Scholar
Railway Labor Act of 1926 (45 U.S.C. § 151-88).Google Scholar
Labor Management Relations Act of 1947 (29 U.S.C. § 151 et seq.).Google Scholar
Equal Pay Act of 1963 (29 U.S.C. § 206 (d)).Google Scholar
Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.).Google Scholar
Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621-34).Google Scholar