The 1964 Act and the word “sex”
Bob Zadek opened a 2018 discussion of sexual harassment by asking whether the subject’s roots lie in “a somewhat surprising bill: the Civil Rights Act of 1964,” enacted during the Johnson administration primarily to address wrongs suffered by blacks in America. Guest Richard Epstein, identified as a senior fellow at the Hoover Institution and a professor of law at NYU and the University of Chicago, called that a fair but somewhat misleading place to start. The relevant provisions, he said, concerned the ‘64 Act’s employment discrimination provisions and whether they would cover not only race but also sex. Epstein attributed the addition to a Southerner, Howard Smith, and noted the thought that pairing the two might sink the whole bill, along with other views that Smith actually believed it. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein said that a search of the record of the 1964 Civil Rights Act, including its Senate floor discussions, turns up not a word about sexual harassment. He attributed the transformation of the material largely to Catharine MacKinnon’s 1978 book Sexual Harassment of Working Women, which he said first claimed that workplace harassment should be treated as a form of sex discrimination having to do with the conditions of employment — so that, regardless of the original intentions of the drafters, the statute’s language would cover it. Epstein said he criticized that position as a technical matter, not because he favors harassment: the issue, in his view, is not discrimination, since men may harass men and women and women may harass men and women, but rather the close association between harassment and assault, traditionally covered by common law doctrines such as intentional infliction of emotional distress. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Bob framed the addition of “sex” as a poison pill designed to kill the bill that failed to do so, so that freedom from sexual discrimination became, somewhat accidentally, a civil right. He drew the distinction he returned to throughout the hour: discrimination is understood as being denied a job because of some characteristic, but it does not flow automatically that harassment equals discrimination — there was a jump from discrimination to harassment. Epstein agreed that the legislative history contains nothing on the subject even though it was one of the most exhaustively debated topics, and added that even if all the decisions were overruled, there would be an enormous push to put these things right back into the bill, which would pass virtually unanimously tomorrow. He said the real question is how to administer such a system so that particular allegations are fairly and properly adjudicated. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Title VII, Title IX and the administrative turn
Epstein traced the doctrine’s path to the Supreme Court, which he said adopted MacKinnon’s position and recognized two kinds of relationships: quid pro quo, a direct request for favors in exchange for promotions, and the hostile environment, where pervasive chatter and attention to physical appearance leave women uncomfortable and disadvantaged. He described the Court as chary and cautious, wanting relatively high thresholds, and said that remains the case at the Supreme Court. The bar became lower, he said, as the matter became administrative, most notably through the “Dear Colleague” letters written by the Office of Civil Rights in 2011, which also made institutional responsibilities — including putting an apparatus in place before cases occur — more salient. He said Betsy DeVos and the Office of Civil Rights removed the 2011 letter, saying in effect that the matter would be rethought from the ground up. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
A December 2018 episode with R. Shep Melnick examined Title IX directly. Bob highlighted the operative verb, “discrimination,” and the phrase “under any education program or activity,” describing the provision as a small one in a large education bill that simply says a recipient of federal financial assistance cannot discriminate on the basis of sex. He said everyone reading it in 1972 would have shrugged, because of course schools cannot discriminate and have no intention of doing so, and told the audience that the word “sex” becomes a very pernicious word in the context of Title IX. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
Bob asked why the prohibition is keyed to receiving federal funds, venturing that Congress lacked power to affect the behavior of private schools and that a statute simply telling a private school not to discriminate on the basis of sex might not be constitutional. Melnick called that a really good question and said using the hook of federal funds certainly made the provision far less controversial; a blanket prohibition would have been much more controversial. He noted that at the same time Title IX passed, the Supreme Court was increasingly saying that discriminating on the basis of sex is unconstitutional, so a blanket prohibition might have been ruled constitutional given how rapidly constitutional law was changing. Melnick added the caveat that Title IX does not apply to admissions to private undergraduate schools, citing female-only schools including Wellesley, Mount Holyoke and Smith and a couple of male-only schools, and said the statute provides a number of areas in which the strict prohibition does not apply. He said this raises the issue of how differently sex and race are viewed, because Title IX was based on the analogy to prohibitions on racial discrimination in the Civil Rights Act. Title IX’s Transformation: R. Shep Melnick on the New Civil Rights Debate (2018)
The 1871 Act and qualified immunity
A June 2020 episode with Clark Neily addressed qualified immunity. The episode description states that Bob Zadek and Neily discuss the doctrine, tracing its origins from the Civil Rights Act of 1871 to its judicial transformation into a shield for government actors, and explore how the “clearly established” standard prevents accountability for police misconduct, along with efforts in the Supreme Court and Congress to reform the doctrine. The excerpt provided for this episode consists of that description and its topic list, which names Qualified Immunity, Section 1983, Police Accountability, the Supreme Court, Judicial Activism, Criminal Justice Reform and Civil Rights; the transcript itself is not included. An Unprecedented Opportunity to Revisit Unqualified Immunity (2020)
Civil rights as a template in later disputes
In an August 2021 episode on vaccine mandates, Bob floated a theory to guest Jenin Younes: if she ran out of governments to sue, people with natural immunity might be made a protected class so that they get the benefit of the Civil Rights Act and employers cannot discriminate against unvaccinated people with natural immunity — a tweak in the Civil Rights Act, as he put it. Younes called it an interesting idea and said she could see it, adding that she could not imagine running out of governments to sue because there are so many, but that there are theories. Vaccine Mandates, George Mason, and the Bill of Rights (2021)
In a May 2022 episode on Critical Race Theory, guest Jonathan Butcher offered a list of policy responses at the federal, state and school board levels. At the state level, he said state policy should provide that no teacher or student shall be compelled to affirm or believe any idea that violates the Civil Rights Act of 1964 — meaning that no teacher or student, in a diversity training or instructional program, should be required to say that America is systemically racist, that the Civil Rights Act is a racist act, or that racism cannot be removed from our institutions and government. He also said school boards should affirm that America today, after the Civil Rights Act and the civil rights movement, has made it so that racism is not systemic in the United States, and that there are individual acts of racism to condemn. Splintered: Critical Race Theory and the Progressive War on Truth (2022)
Bob closed that episode by boiling the discussion down to one principle: any policy, law or practice that looks at anybody other than as an individual on his or her merits is presumptively bad, because we are not members of any group other than a group of one. He said that is a core founding principle that Critical Race Theory crashes right into. Splintered: Critical Race Theory and the Progressive War on Truth (2022)
Across episodes
The 1964 Act recurs across the 2018 harassment episode, the 2018 Title IX episode, the 2021 vaccine-mandate episode and the 2022 Critical Race Theory episode, but the excerpts do not show the same question argued twice: Epstein and Melnick each supply a distinct account of how sex discrimination provisions were drafted and extended, while Bob’s protected-class suggestion to Younes and Butcher’s compelled-speech proposal are separate applications of the statute rather than stages in one dispute. The 2020 qualified immunity episode touches the topic only through its description of the Civil Rights Act of 1871.
What the sources do not cover
The excerpts do not supply the text of the 1964 Act, the outcome of any harassment or Title IX case, or the terms of the 1871 statute beyond its name and the doctrine traced to it. The qualified immunity episode is represented only by a description and topic list, with no transcript. The Title IX episode breaks off mid-sentence after Bob’s introduction to a segment titled “From Discrimination to Social Engineering,” and the harassment episode ends mid-sentence as Epstein turns to administration of the system.