U.S. Congress Mandates Equal Employment Opportunity

Date March 24, 1972

The Equal Employment Opportunity Act of 1972 expanded Title VII of the Civil Rights Act of 1964 to provide preferential treatment to minorities and women in both public- and private-sector employment.

Also known as Equal Employment Opportunity Act of 1972; U.S. Statutes at Large 86 Stat. 103; Public Law 92-261; U.S. Code 42 § 2000e

Locale Washington, D.C.

Key Figures

• William H. Brown III (b. 1928), chairman of the Equal Employment Opportunity Commission
• John N. Erlenborn (1927-2005), U.S. congressman from Illinois
• Sam Ervin (1896-1985), U.S. senator from North Carolina
• Jacob K. Javits (1904-1986), U.S. senator from New York
• Richard M. Nixon (1913-1994), president of the United States, 1969-1974
• Harrison A. Williams, Jr. (1919-2001), U.S. senator from New Jersey and chairman of the Senate Labor and Public Welfare Committee

Summary of Event

The Equal Employment Opportunity (EEO) Act of 1972 was passed on March 6, 1972, and signed into law on March 24, following a joint conference of both houses of the U.S. Congress. The act was passed by majority roll-call votes of 303-110 in the House of Representatives and 62-10 in the Senate. The EEO Act was intended to reinforce Title VII of the Civil Rights Act of 1964, which had been one of the most radical and comprehensive pieces of legislation in U.S. history.

The Civil Rights Act of 1964 created the Equal Employment Opportunity Commission (EEOC) to eliminate discrimination against racial and ethnic minorities in private hiring practices and labor union activities. The 1964 act expanded the powers of the Civil Rights Commission, provided voter-registration protection for blacks, forbade discrimination in publicly owned and operated places, provided federal financial assistance in the desegregation efforts of public schools, and authorized the U.S. attorney general’s office to bring desegregation suits in the name of the United States.

Under the 1964 act, however, the EEOC lacked enforcement powers in cases of discrimination on the basis of race, sex, national origin, or religion. Its powers were mainly conciliatory, and it could only recommend court action to the Justice Department. Moreover, the provisions of the 1964 act did not apply to discrimination in the public sector, even though federal, state, and local government agencies had a record of employment discrimination against minorities. Congress intended to provide equal employment opportunity in both the public and private sectors through the passage of the EEO Act of 1972.

The EEO Act represented a partial victory for civil rights groups, which had persisted in their demands for enforcement powers for the EEOC since the passage of the 1964 act. The new act authorized the EEOC to take employment discrimination cases directly to the federal district courts. It also extended employment protection uniformly to include both private-sector and government employees and authorized the enforcement of this policy through the Civil Service Commission and the federal courts. The EEO Act of 1972, however, did not meet the demands of civil rights groups for equipping the EEOC with the power to issue cease-and-desist orders to employers practicing discrimination.

Cease-and-desist powers for the EEOC had been a divisive issue within the government since the 1960’s. President Lyndon B. Johnson personally had favored such powers in his 1966 civil rights message and had endorsed several bills to that effect. In 1966, the House of Representatives had approved an enforcement bill, but the Senate did not act on it. President Richard M. Nixon’s administration was opposed to the idea of cease-and-desist powers for the EEOC and instead had recommended that enforcement powers should reside with the federal courts. In both the Senate and the House, there were supporters and opponents of the enforcement powers for the EEOC. Opponents argued that enforcement powers for the EEOC would make it too powerful and cause undue interference in state, local, and individual affairs. In 1970, however, by a 42-24 vote, the Senate had rejected the Nixon administration’s suggestion and authorized the EEOC to issue cease-and-desist orders. A similar bill was introduced in the House of Representatives, but it died in the Rules Committee.

In 1971, the House adopted the Republican-backed measure for enforcement powers for courts instead of the cease-and-desist measure introduced by the House Education and Labor Committee. In October, 1971, when the Senate Labor and Public Welfare Committee introduced the bill reviving the demand for cease-and-desist powers for the EEOC, a compromise became necessary for the successful passage of the bill. A subsequent joint conference of the two houses made it possible for identical versions of the bill to be passed by both.

The EEO Act of 1972 amended and expanded the provisions of Title VII of the Civil Rights Act of 1964. It expanded the jurisdiction of the EEOC to include businesses and labor unions with fifteen or more employees or members as well as state and local governments and their employees. It specifically excluded from its provisions elected officials, their personal assistants, appointed policy-making officials, and legal advisers. It eliminated exemption from the 1964 act for employees of educational institutions, expanded exemptions for religious organizations, and authorized the EEOC to go to court to seek the enforcement of the statute if an acceptable conciliation could not be secured. If the employer concerned was a government agency or body, the attorney general would handle the case. The act also authorized an aggrieved party to bring a private suit if an EEOC conciliation decision excluded that individual and authorized courts to order an employer to remedy discrimination by reinstating or hiring employees and to order back-pay awards with a two-year ceiling.

The EEO Act of 1972 also established an Equal Employment Opportunity Coordinating Council to formulate a uniform approach to enforcing Title VII and to facilitate the implementation of all federal equal employment opportunity efforts. The act authorized the federal Civil Service Commission to enforce the policy for federal employees. It expressly granted an individual federal employee the right to seek relief from discrimination in the federal courts; it also provided that no government contract could be suspended or withheld from an employer without a full hearing if the employer in question had an equal opportunity program already approved by the federal government. Following the passage of the EEO Act, the EEOC revised its guidelines on sex discrimination, making sweeping changes to include employers’ policies on pregnancy and childbirth, strengthening the commission’s earlier position on the equalization of fringe benefits and state protective laws, and clarifying its new policy on the use of sex as a bona fide occupational qualification. The EEOC also revised its policies regarding the maintenance of separate lines of progression and seniority on the basis of sex, discrimination against married women, job opportunity advertising, and other issues.

The justification for Title VII and its amendments undertaken by the EEO Act of 1972 was the disparity that existed in employment and economic status between white males as a group and racial and ethnic minorities and women, a disparity that was attributed to the existence of widespread prejudice and discrimination in American society. The new act sought to correct that imbalance.

Significance

The EEO Act of 1972 stirred a large amount of controversy and political and legal debate. The affirmative action policy of the federal government was translated into the establishment of a quota system to provide equality of opportunity to hitherto disadvantaged groups; this was perceived by many to be “reverse discrimination” against white males. Unlike the Civil Rights Act of 1964, which was the result of a more general bipartisan consensus in Congress and in American society, the EEO Act was perceived by a number of members of Congress and others as designed to institutionalize a preferential system for minorities, particularly African Americans, in employment.

The section-by-section printing of the analysis of the 1972 legislation and of the arguments of individual members of Congress in the Congressional Record and other federal publications widely disseminated information about the conflicting viewpoints to the public. Between 1965 and the passage of the EEO Act in 1972, considerable controversy had already begun to surface about the nature and meaning of affirmative action in employment: whether it sought to establish a race-conscious public policy or a “color-blind” society. Some perceived these two goals to be compatible; others found the former to be in violation of the principles of the Constitution and of the political ideals of individual freedom and open competition. The entire debate centered on whether equality of opportunity could be a fact of life without government intervention on behalf of deprived racial groups. The EEO Act of 1972 expanded the provisions of Title VII and increased the EEOC’s remedial powers against employers practicing discrimination. In the absence of a clear definition of the goals of Title VII—whether it sought compensatory or redistributive justice—the interpretation of affirmative action was left to the legal and political supporters and opponents of the policy.

Minority beneficiaries of affirmative action hiring plans were sometimes stereotyped as inferior employees. The statute mandating equal employment opportunity came to be perceived as coercive toward business. The implementation of Title VII in its amended form under the EEO Act of 1972 was effected by administrative regulations, EEOC guidelines, and court decisions. Implementation was based on the disparate impact theory of discrimination, which held that discrimination was not an individual act of injury or denial of rights caused by racial prejudice but was rather the sum of the unequal effects of employment procedures and business practices on racial groups.

Soon after the EEO Act of 1972 was implemented, legal suits based on racial and sexual discrimination began to pour into courts, creating backlogs in the handling of cases and indicating that discrimination was widespread. Conversely, lawsuits claiming reverse discrimination were brought and at times successfully contested.

Minorities made some gains in employment after the act’s passage. Discriminatory employment practices continued to exist, however, and group conflict in society also sharpened with the coming of economic recession, rising unemployment, and the shift from an industrial to a high-tech postindustrial economy. The heightened sense of identity, consciousness of discrimination, and political activism of a host of nonracial groups—gender groups, gay and lesbian groups, gerontological and disabled populations, and others—placed increased demands on the political system for the protection of group rights.

Bibliography

Belz, Herman. Equality Transformed: A Quarter-Century of Affirmative Action. New Brunswick, N.J.: Transaction, 1991. Scholarly work addresses the paradox of using race or sex considerations to achieve a race- or gender-blind society. Critical of the U.S. government’s affirmative action policy.

Greene, Kathanne W. Affirmative Action and the Principles of Justice. New York: Greenwood Press, 1989. Systematic study of the legislative history of Title VII from the Civil Rights movement to the Reagan years. Treats affirmative action not only from the legal and political standpoint but also as an emotional issue for supporters and opponents. The author clearly is in favor of affirmative action programs.

Gregory, Raymond F. Women and Workplace Discrimination: Overcoming Barriers to Gender Equality. New Brunswick, N.J.: Rutgers University Press, 2005. Traces the history of federal measures enacted to prevent employers from discriminating against women in the workplace. Uses court cases to illustrate points.

McMannis, Charles R. “Racial Discrimination in Government Employment: A Problem of Remedies for Unclean Federal Hands.” Georgetown Law Journal 63 (July, 1975): 1203-1244. Traces the background of Congress’s intention to provide equal employment opportunity for minorities in the public sector. Concludes that the 1972 act has not removed all administrative barriers before federal employees in filing complaints of employment discrimination.

McPherson, Stephanie Sammartino. The Bakke Case and the Affirmative Action Debate: Debating Supreme Court Decisions. Berkeley Heights, N.J.: Enslow, 2005. Thorough explanation of affirmative action aimed at young adult readers. Includes chapter notes and questions for discussion.

Pole, J. R. The Pursuit of Equality in American History. 2d ed. Berkeley: University of California Press, 1993. Presents the history of the idea of equality and its practice during the eighteenth, nineteenth, and twentieth centuries, as manifested in such doctrines as equality before law, equality of opportunity, and equality of esteem. Addresses issues of race, religion, sex, and human rights.

Schwartz, Bernard. Behind Bakke: Affirmative Action and the Supreme Court. New York: New York University Press, 1988. Provides insight into the behind-the-scenes politicking, vote switches, and logrolling that go on at the Supreme Court. Traces the history of Supreme Court decisions from Brown v. Board of Education of Topeka, Kansas (1954) to University of California Regents v. Bakke (1978) in demolishing the myths that the highest court of U.S. law is above politics and that its majority decisions are sacred. Shows that minority dissent, on the other hand, may have the value of becoming a constitutional landmark.

U.S. Civil Service Commission. Bureau of Intergovernmental Programs. Equal Employment Opportunity in State and Local Governments: A Guide for Affirmative Action. Washington, D.C.: U.S. Government Printing Office, 1972. A guide for state and local governments. Explains the nature of the EEO Act of 1972 and provides a step-by-step program for state and local government agencies in providing affirmative action in employment.

U.S. Congress. House. Committee on Education and Labor. Subcommittee on Equal Opportunities. The Equal Employment Opportunity Act of 1972. Washington, D.C.: U.S. Government Printing Office, 1974. Provides a comprehensive background to the legislative history and provisions of the EEO Act of 1972.