The Influence of Justice Thurgood Marshall on the Development of Title VII Jurisprudence

St. John's Law Review Volume 89 Number 2 Volume 89, Summer/Fall 2015, Numbers 2 & 3 Article 9 April 2016 The Influence of Justice Thurgood Marshall on the Development of Title VII Jurisprudence Wendy B. Scott Jada Akers Amy White Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Part of the Civil Rights and Discrimination Commons Recommended Citation Wendy B. Scott, Jada Akers, and Amy White (2015) "The Influence of Justice Thurgood Marshall on the Development of Title VII Jurisprudence," St. John's Law Review: Vol. 89 : No. 2 , Article 9. Available at: https://scholarship.law.stjohns.edu/lawreview/vol89/iss2/9 This Symposium is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . 37692-stj_89-2-3 Sheet No. 142 Side A 04/08/2016 13:04:55 3/24/16 12:13 AM FINAL_SCOTT.DOC THE INFLUENCE OF JUSTICE THURGOOD MARSHALL ON THE DEVELOPMENT OF TITLE VII JURISPRUDENCE WENDY B. SCOTT† JADA AKERS†† AMY WHITE††† INTRODUCTION The Civil Rights Act of 1964 had the noble goal of eliminating discrimination. Specifically, the Act “addressed and prohibited discrimination in public accommodations, public school education, federally-funded programs, and private sector employment” based on race, sex, religion, and other protected classifications.1 Title VII of the Act was implemented to eliminate discrimination in the workforce and “created an Equal Employment Opportunity Commission (EEOC) to administer and enforce the statute.”2 Congress, however, only gave the EEOC “the authority to seek enforcement by ‘informal methods of conference, conciliation, and persuasion’ but not the authority to compel compliance.”3 As written, Title VII was broad and left enforcement ambiguous and violations undefined.4 Thus, Congress left the task of determining what constituted a C M Y K 04/08/2016 13:04:55 671 37692-stj_89-2-3 Sheet No. 142 Side A † Dean and Henry Vaughan Watkins and Shelby Watkins McRae Professor of Law, Mississippi College School of Law. †† Assistant District Attorney in North Carolina’s Prosecutorial District 3A. ††† Assistant District Attorney in North Carolina’s Prosecutorial District 5. 1 Ronald Turner, Thirty Years of Title VII’s Regulatory Regime: Rights, Theories, and Realities, 46 ALA. L. REV. 375, 379 (1995). 2 Id. at 379–80. 3 Robert Belton, Title VII at Forty: A Brief Look at the Birth, Death, and Resurrection of the Disparate Impact Theory of Discrimination, 22 HOFSTRA LAB. & EMP. L.J. 431, 433 (2005) (footnote omitted) (quoting 42 U.S.C. § 2000e-5(b) (2012)). 4 Martha Chamallas, Evolving Conceptions of Equality Under Title VII: Disparate Impact Theory and the Demise of the Bottom Line Principle, 31 UCLA L. REV. 305, 305–06 (1983). 37692-stj_89-2-3 Sheet No. 142 Side B 04/08/2016 13:04:55 3/24/16 12:13 AM FINAL_SCOTT.DOC 672 ST. JOHN’S LAW REVIEW [Vol. 89:671 violation of the Act, the standards of pleading, and the proof required for successful enforcement of Title VII to the Supreme Court of the United States. Justice Thurgood Marshall sat on the Supreme Court during the first twenty years of decisions rendered by the Court interpreting Title VII. These seminal decisions transformed Title VII from a “poor enfeebled thing”5 into a vehicle for social reform that equalized access to the courts by allowing employees to take action against private employers’ discriminatory practices. This Article highlights Justice Marshall’s influence on the development of Title VII jurisprudence. Part I presents a brief overview of Justice Marshall’s personal and professional life before becoming a Justice to show how his experience influenced the development of his judicial philosophy. Part II summarizes the Court’s approach to some of the issues left unresolved by Congress in the initial passage of Title VII. Specifically, it explores how the Court determined what would constitute a violation of Title VII and standards of pleading and proof. Part III examines the changes in the Court’s jurisprudence before Justice Marshall retired from the bench. As the majority of Justices became less sympathetic to the protection of African Americans in the workplace, Justice Marshall’s voice of dissent emerged. Part IV concludes with a discussion of the Civil Rights Act of 1991, which vindicated Justice Marshall’s choice to dissent by adopting many of the positions taken in his departure from the majority view. THE MAKING OF A “SOCIAL ENGINEER” In a tribute to Justice Marshall, Justice William Brennan addressed what he believed made Justice Marshall a unique voice on the Court.6 He attributed the unique views of Justice Marshall to “the special voice that he added to the Court’s deliberations and decisions.”7 He described Justice Marshall’s voice as a first person voice of authority and reason with the “unwavering message” that “the Constitution’s protections must not be denied to anyone and that the Court must give its constitutional doctrine the scope and the sensitivity needed to 37692-stj_89-2-3 Sheet No. 142 Side B I. 5 C M Y K 04/08/2016 13:04:55 Belton, supra note 3, at 433 (internal quotation marks omitted). William J. Brennan, Jr., A Tribute to Justice Thurgood Marshall, 105 HARV. L. REV. 23, 23 (1991). 7 Id. 6 37692-stj_89-2-3 Sheet No. 143 Side A 04/08/2016 13:04:55 3/24/16 12:13 AM FINAL_SCOTT.DOC 2015] INFLUENCE OF JUSTICE MARSHALL 673 8 C M Y K 04/08/2016 13:04:55 Id. Id. 10 Lynn Adelman, The Glorious Jurisprudence of Thurgood Marshall, 7 HARV. L. & POL’Y REV. 113, 115 (2013). 11 U.W. Clemon & Bryan K. Fair, Making Bricks Without Straw: The NAACP Legal Defense Fund and the Development of Civil Rights Law in Alabama 1940–1980, 52 ALA. L. REV. 1121, 1130 & n.49 (2001). 12 MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL AND THE SUPREME COURT, 1936–1961, at 6 (1994) (internal quotation marks omitted). 13 Id. 14 Id. 15 Id. 16 RANDALL WALTON BLAND, JUSTICE THURGOOD MARSHALL: CRUSADER FOR LIBERALISM 31 (2001). 17 Clemon & Fair, supra note 11, at 1131. 9 37692-stj_89-2-3 Sheet No. 143 Side A assure that result.”8 Justice Brennan believed that what shaped Justice Marshall’s judicial voice were his personal experience of racial segregation and the years he spent as an advocate “using the tools of legal argument to close the gap between constitutional ideal and reality.”9 Justice Marshall gained his voice while attending college and law school. He attended Lincoln University where faculty and fellow students nurtured his belief in racial equality.10 Upon graduating from Lincoln, he enrolled in Howard Law School after being refused admission to his home state law school at the University of Maryland because of his race.11 At Howard, Marshall came under the mentorship of Charles Hamilton Houston and was exposed (...truncated)