Comparison of the California Civil Rights Initiative With the 1964 Federal Civil Rights Act

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THE 1964 FEDERAL CIVIL RIGHTS ACT

Two of the main sections of the 1964 Civil Rights Act and an important part of it's legislative history are summarized and then presented.

SUMMARY

42 USC § 2000d prohibits racial discrimination in programs receiving Federal money. This applies to school and college programs that receive Federal money.

42 USC § 2000e-2 prohibits racial and sexual discrimination by employers when hiring, training and providing other employment opportunities. This applies to state government employers, as well as private employers.

The Act's ban on racial and sexual "discrimination" necessarily includes a ban on racial and sexual "preference." This is because discrimination against one person necessarily means preference for another person, as recognized by Senator Hubert H. Humphrey.

42 USC § 2000e-2(e) says that an employer may discriminate on the basis of sex in those certain instances where sex is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.

42 USC § 2000e-2(j) states that the Act does not require any employer to grant preferential treatment to any individual or group because of the race or sex of such individual or group on account of any racial or sexual imbalance which may exist in the employer's work force.

42 USC § 2000e-2(m) states that it is unlawful for race or sex to be used as a motivating factor for any employment practice, even when other factors also motivated the practice.

TEXT OF 1964 CIVIL RIGHTS ACT

For the complete text of the Act, go to the following Cornell University School of Law web site: http://www.law.cornell.edu/uscode/42/ch21.html%20

42 USC § 2000d -- PROHIBITION AGAINST EXCLUSION FROM PARTICIPATION IN, DENIAL OF BENEFITS OF, AND DISCRIMINATION UNDER FEDERALLY ASSISTED PROGRAMS ON GROUND OF RACE, COLOR, OR NATIONAL ORIGIN

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

42 USC § 2000e-2 -- UNLAWFUL EMPLOYMENT PRACTICES

(a) Employer practices

It shall be an unlawful employment practice for an employer -

  •  (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
  • (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

....

(d) Training programs

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

(e) Businesses or enterprises with personnel qualified on basis of religion, sex, or national origin; educational institutions with personnel of particular religion

Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, and (2) it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

....

(j) Preferential treatment not to be granted on account of existing number or percentage imbalance

Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.

....

(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices

Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

[subsection (m) was added in 1991]

LEGISLATIVE HISTORY OF 1964 CIVIL RIGHTS ACT

The 1964 Civil Rights Act "would prohibit preferential treatment for any particular group...."

---- Senator Hubert H. Humphrey (a primary sponsor of the Act) (110 Congressional Record 11848)

The most comprehensive presentation of the legislative history of the 1964 Civil Rights Act in a court opinion is in Justice William Rehnquist's dissenting opinion in Steelworkers v. Weber, 443 U.S. 193, 61 L Ed 2d 480 (1979).

THE CCRI

SUMMARY

The CCRI prohibits the state from using racial and sexual discrimination and preferences in hiring, contracting and education. The CCRI only applies to the state; it does not apply to private entities. The phrase "affirmative action" is not mentioned in the CCRI. Only discrimination and preferential treatment are prohibited. Any part of "affirmative action" that does not constitute discrimination or preferential treatment would be unaffected by the CCRI.

The CCRI does not prohibit the use of bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

THE CCRI

(a) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

(b) This section shall apply only to action taken after the section's effective date.

(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.

(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.

(f) For the purposes of this section, "state" shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.

(g) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.

(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United State Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.