A recent Supreme Court ruling which upheld the unreasonable and unrealistic application of time limits on those who believe they are the victim of pay discrimination is another in a growing list of occurrences which demonstrate, clearly and convincingly, that the clock is being rolled back on civil rights enforcement in America. It's the Reagan era all over again. Court rulings and the Bush administration's abdication of support for those who have been wronged has literally made it easier to discriminate against individuals based on race and gender. This is an unfortunate result of conservative deregulation of civil rights enforcement that, if left unchecked, will adversely impact minorities and women for decades. The conservative juggernaut that has demonized discussions of legitimate concern regarding civil rights as simply seeking "political correctness" or "playing the race card" has gone on long enough and those who know better must speak up in defense of what is right.
The Supreme Court decision in Ledbetter v. Goodyear Tire and Rubber Co. seems absurd on its face. Lilly Ledbetter, who worked at Goodyear for 19 years, alleged that she received less pay than male counterparts for the same work because of gender discrimination. At the time of the discrimination complaint, Ledbetter was making $6,000 less per year than the lowest paid man doing the same job. She was awarded $360,000 (down from the $3.6 million original jury award) in damages but the US Court of Appeals for the Eleventh Circuit reversed, holding that the district court should have granted Goodyear's motion for judgment because the statute required Ledbetter to file her complaint with the Equal Employment Opportunity Commission (EEOC) within six months of the alleged illegal employment practice (Ledbetter argued that each paycheck constituted a new discriminatory act). The Supreme Court upheld the circuit court ruling in a ruling which held that each paycheck that showed a gender-based disparity must have been contested within the 180-day EEOC timeframe.
Congress established the time limit in Title VII of the Civil Rights Act of 1964. The limit now seems arbitrary and penalizes anyone who finds out after that period that they are being wronged. The Supreme Court has made the burden even more difficult by now putting victims of discrimination in the position of being protected only if they happen to find out about the discrimination within the first six months of their employment. How likely is it that a discriminatory practice would be revealed so quickly? While a time limit is a reasonable requirement, a short one such as this does not give a fair chance to those seeking court redress. This is even more notable when one considers the enormous and growing backlog of cases before the EEOC. As Justice Ruth Bader Ginsberg noted in the dissenting opinion, "The Court's insistence on immediate contest overlooks common characteristics of pay discrimination." Ginsberg noted that pay discrimination often occurs in small increments that may take a long period of time to be revealed. As pay information is often secret, it is even more difficult for someone being victimized by wage discrimination to learn of such discrepancies.
And as the Supreme Court continues to erode civil rights protections, the Bush administration is making things worse. It was recently revealed that the Justice Department has an abysmal record when it comes to hiring Black attorneys and conducting civil rights cases. Since 2003, the criminal section within the Civil Rights Division (CRD) has not hired a single African American attorney to replace those who have left and it's not like the CRD was a hotbed for Black attorneys. In 2007, there are fifty attorneys in the Criminal Section, just two of whom are African American. By comparison, the section had two African American attorneys in 1978, despite the fact that it was half the size of the current organization.
Justice commissioned KPMG Consulting and Taylor Cox and to examine diversity among attorneys throughout the department. The report, which was initially kept from Congress and the public, was heavily redacted when it was released. It was ultimately revealed that women and minority attorneys in the department feel that their careers are hindered and they are passed up in favor of White men when it comes to getting the best assignments. This, combined with six senior CRD officials being forced from their jobs for what appears to be political reasons, has undermined the work of the Justice Department.
The personnel decisions in the CRD are but part of the problem. Prosecutions are down as well. On the one hand, one may argue a decline in prosecutions can reflect a reduction in discrimination and, therefore, be a sign of progress. Those who reject that argument, of which I am one, would counter that it could mean that Justice is more accommodating to those who engage in illegal discrimination. Be that as it may, the statistics are more than worrisome. According to the Leadership Conference on Civil Rights, the Justice Department has only tried 35 Title VII employment discrimination cases since 2001, compared to 92 cases brought during the Clinton administration. The Housing and Civil Enforcement section's cases dropped from 53 in 2001 to 31 in 2006, with a 60% decline in the number of race-related cases.
Sadly, this is in keeping with the history of conservative civil rights enforcement. As professor Hanes Walton demonstrated in his book When the Marching Stopped: The Politics of Civil Rights Regulatory Agencies, conservatives have long resisted fair civil rights enforcement. Conservative arguments often revolve around the notion that federal civil rights enforcement too often results in reverse discrimination and harms Whites. These efforts took on new resonance with Ronald Reagan's election to the presidency in 1980. He talked openly of remaking the civil rights status quo.
But as I note in my book Republicans and the Black Vote, Democrats controlled the House of Representatives and vehemently opposed Reagan's efforts and served as a backstop against Reagan and the Republican majority in the Senate, many of whom were elected along with Reagan on a conservative policy platform and were sure to support the president's proposed changes in this regard. Overtly seeking to overturn these measures would continue to paint Reagan as a racist, and continued a controversy that had the potential to bog down other areas of his domestic agenda, such as tax cuts. Reagan needed a more covert approach to get closer to his policy goals. The Reagan solution was to defund the parts of the federal apparatus responsible for enforcing and contributing to the enforcement of civil rights laws, thereby lessening their ability to examine and enforce federal civil rights issues.
The dismantling of Federal civil rights enforcement under Reagan took two forms occurring concomitantly. First, was the freezing or reducing of funding for agencies charged with enforcement of federal civil rights laws and regulations. Rather than overtly end these programs and agencies, the Reagan administration sought to starve them to prevent them from doing their work. In this way, they could largely achieve their goal of civil rights deregulation without seeking the abolition of the programs and agencies, thereby providing some political cover. Second, was the hiring of individuals to lead these organizations, or take high-ranking positions therein, who were ideologically pre-disposed to not enforce federal civil rights laws and regulations as aggressively as their predecessors. These actions deregulated federal civil rights enforcement and created an environment in which civil rights violations could occur with near impunity and certainly with much less fear of federal reprisals than before.
In some departments, enforcement either shifted in new ways, was reduced, or discontinued. One congressional investigation concluded that the Equal Employment Opportunity Commission shifted away from class action lawsuits, elevated the standard of proof to establish reasonable cause, orally directed staff not to recommend the use of goals and time tables and not to intervene in cases in which goals and timetables were proposed as a remedy for discrimination, and accelerated closure of cases at the expense of quality of investigations. The Justice Department filed no cases under the Fair Housing Act of 1968 during its first year under Reagan; they filed two in 1982. Under presidents Nixon, Ford, and Carter, the department averaged thirty-two cases a year.
This background demonstrates that the Bush administration's civil rights enforcement efforts are part of a long lineage of conservative policies in this area. It is clear and incontrovertible that conservative civil rights enforcement will always work against those most likely to be victimized by discrimination, be it in the workplace, in housing, or education. For conservatives, the real victims are not those who are discriminated against but, rather, those who are have to operate within the confines of civil rights law and are trapped into frivolous litigation. Conservatives who argue otherwise are either ignorant of history or willfully twisting the truth to support their point.
The conservative-led deregulation of civil rights enforcement has created a fairness void in America that flies in the face of attempts by the Republican Party to reach out to minorities. Republican political activists are quick to note the appointments of Colin Powell and Condoleeza Rice to significant and unprecedented positions in the Bush administration as evidence that the GOP is doing the right thing on civil rights. While notable, these appointments do nothing to overcome the reality that this administration, like so many conservative governments of previous years, has deregulated civil rights enforcement to such a degree that basic, common-sense civil rights for all is in jeopardy.
Michael K. Fauntroy is an assistant professor of public policy at George Mason University and author of the recently published book Republicans and the Black Vote.