Enactment and the addition of sex
In the account Richard Epstein gives, the employment discrimination provisions of the Civil Rights Act of 1964 were extended to cover not only race but also sex, as it was then called. Epstein attributes the proposal to a Southerner, Howard Smith, and notes the thought that combining the two subjects might cause the whole bill to go down; he adds that other views hold that Smith actually believed in the measure. Bob Zadek characterizes the inclusion of sex discrimination as something tossed in as a poison pill that failed to kill the bill, so that freedom from sexual discrimination became, somewhat accidentally, a civil right. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Epstein states that a search of the record of the 1964 Act, including its discussions on the Senate floor, turns up not a word about sexual harassment. He describes the legislative history as one of the most exhaustively debated topics, and says that combing it yields nothing on that particular subject. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
From discrimination to harassment
Epstein traces the transformation of the material to Catharine MacKinnon’s 1978 book Sexual Harassment of Working Women, in which she argued for the first time that harassment in the workplace should be treated as a form of sex discrimination having to do with the conditions of employment. He says that regardless of the original intentions of the statute’s drafters, the conduct would be covered by its language, and that what MacKinnon wrote resonated quickly with large portions of the electorate. Epstein notes that he criticized her position as a technical matter, not because he favors sexual harassment, on the ground that the issue is not one of discrimination: men may harass men and women, and women may harass men and women. In his view the real issue is the close association between harassment and assault, traditionally covered by the common law of intentional infliction of emotional distress rather than by sexual discrimination laws. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
The question reached the Supreme Court some years later, which Epstein says basically adopted MacKinnon’s position and held that sexual harassment is covered. He describes two relationships the Court developed: quid pro quo, a direct request for favors in exchange for promotions, and hostile environment, where pervasive chatter and attention to physical appearance leave women in an uncomfortable and disadvantaged position. Epstein characterizes the Court as chary and cautious, wanting relatively high thresholds, and says that remains the case at the Supreme Court. He then describes the matter becoming an administrative one, enforced most notably by the “Dear Colleague” letters written by the Office of Civil Rights in 2011, which lowered the bar somewhat and made institutional responsibilities more salient, before Betsy DeVos and the Office of Civil Rights removed the 2011 letter. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
Zadek frames the legal development as a jump from discrimination to harassment, saying it does not flow automatically that harassment equals discrimination. Epstein responds that even if all the decisions were overruled and Title VII and Title IX set aside, there would be an enormous push to put these things right back into the bill, and it would pass virtually unanimously tomorrow; he says the real question is how to administer the system so that particular allegations are fairly and properly adjudicated. An Intellectual Discussion of Sexual Harassment with Richard Epstein (2018)
The Act as settlement, and the Critical Race Theory challenge
In the 2022 episode, Jonathan Butcher presents the Civil Rights Act of 1964 as the point at which the United States believed the moral question of discrimination was settled at the institutional level, alongside the cultural settlement of the civil rights movement. He says Americans today regard racism and discrimination as utterly abhorrent and wrong, which is why acts appearing to exhibit racial prejudice make headlines. Splintered: Critical Race Theory and the Progressive War on Truth (2022)
Butcher describes Critical Race theorists as rejecting the premise that legislation could rectify what they see as systemic racism. He says they argued with Critical Legal theorists and felt they had to develop their ideas outside Critical Legal Theory, because liberals and conservatives in law in the 1960s and ’70s debated civil rights within the confines of the Constitution and American law, saying that changing the law—the Civil Rights Act of 1964—would make America live up to its potential of providing equality under the law and freedom and opportunity to everyone. The Critical Race theorists said America is systemically racist and will always be that way. Splintered: Critical Race Theory and the Progressive War on Truth (2022)
Butcher identifies Derrick Bell, a Harvard law professor, as the godfather of Critical Race Theory and cites his book Faces at the Bottom of the Well, whose subtitle points at the permanence of racism. Butcher also says Critical Race theorists argue that the Civil Rights Act passed only because of what Bell called “interest convergence”—the theory, which Butcher attributes to Bell along with Richard Delgado, that civil rights succeeded in the United States to preserve white power. Splintered: Critical Race Theory and the Progressive War on Truth (2022)
Across episodes
The two episodes treat the Act from opposite directions. In the 2018 episode, Epstein and Zadek examine how its sex discrimination language was extended, through MacKinnon’s 1978 book and later Supreme Court decisions, into sexual harassment law and administrative enforcement. In the 2022 episode, Butcher treats the Act as the institutional settlement of the discrimination question and describes Critical Race Theory’s rejection of that settlement through Bell’s interest convergence thesis. The excerpts show no shared argument between the episodes; the later treatment does not revisit the harassment question, and the earlier treatment does not address Critical Race Theory.
What the sources do not cover
The excerpts do not state the city or state in which any episode was recorded, nor the dates of the Supreme Court decisions Epstein discusses, nor the names of the cases. They do not identify the amendment or constitutional provision on which the Act rests, nor the outcome of any case. The 2018 excerpt breaks off mid-sentence in Epstein’s answer about adjudication, and the 2022 excerpts break off at several points where Zadek’s questions are cut.