Bedrock Principles, Elusive Construction, and the Future of Equal Employment Laws
Hofstra Law Review
Part I of this Article discusses the original limitations of Title VII for plaintiffs, and shows that the Court narrowed the statute further in the above-noted employment cases, among others. It then illustrates what appears to be the Court's methodical and permanent move away from an analytical scheme grounded in the broad remedial purposes of civil rights legislation. The Article documents the Court's constant reliance on “bedrock” Anglo-American jurisprudential principles in deciding cases to highlight the shift from remedial purposes analysis to narrow textual construction as an enduring interpretive standard. The first part further observes that injection of bedrock principles and text-focused analysis into the civil rights area is not theoretically negative, because of abundant deeply-rooted interpretive principles favoring discrimination victims. Further, this part calls on the Court to utilize supportive “American” rules as a symbol of its articulated commitment to civil rights, while abiding by professed constitutional and statutory demands of neutrality, strict scrutiny, and color blindness. Recognizing the potential benefits of textualism, the first part argues that the 1991 Act can thrive under this interpretive methodology if analysis is free of judicial manipulation.
Part II of this Article analyzes the legislative proposals and demise of the Civil Rights Act of 1990, then proceeds to evaluate the subsequent competing proposals that ultimately forged the 1991 legislation. The actual impact of the 1991 Act on Supreme Court decisions narrowing Title VII is carefully considered in an attempt to predict what actual gains were made for employees that are discriminated against. This part also discusses other legislative gains that in many instances were not tied to specific Court rulings. Part II concludes that while many significant gains were made for discrimination victims, the 1991 Act is not a panacea, as partly evidenced by continuing legislative battles and judicial disagreement.
Part III studies the thorny problem of determining when the Act takes effect. In this part, the Act's language and structure are evaluated, as well as its legislative history and various court decisions construing it. This evaluation will highlight the internal conflicts of the text, the contradictory statements of legislators, and conflicting interpretations of judges. Although the Court has not articulated clear *318 rules on the subject of retroactivity, this part predicts a construction disfavoring retroactivity and subordinating the interest of employees, despite the availability of substantial legal and policy reasons countenancing a different result.
Part IV analyzes the Court's fractured jurisprudence on affirmative action in employment cases, and the evolution of solid judicial and popular theoretical opposition to remedial schemes. This part specifically considers the effect of the 1991 Act on affirmative action in view of the concerted effort by legislators to avoid this issue in trying to secure passage of the 1991 legislation. Predicting a bleak future for affirmative action, attention is also given to reparations, a doubtful but increasingly discussed remedial device. In view of popular judicial, legislative, and executive opposition to preferential schemes, this part concludes that the quest for equal employment may be stifled by a conservative Court, competing national priorities, and changed societal attitudes. This part also concludes that broad-based and powerful opposition to remediation makes forging ties with the Court essential to the success of future civil rights protection.
Stephen A. Plass, Bedrock Principles, Elusive Construction, and the Future of Equal Employment Laws, 21 Hofstra L. REV. 313 (1992).