This could easily be misinterpreted as a Great Debate on race relations, so I’ll try to stick to the facts…
During the 60s Civil Rights movements, it became illegal for the government to fire employees based on race or sex – which makes sense, because all citizens pay taxes to the government and therefore all citizens should get equal treatment by the government.
But today, even private employers can be sued or fined for firing or failing to hire minorities. How did that evolve? Don’t I, as a private citizen, have the freedom to be a racist/sexist jerk if I choose? When and how did laws get passed requiring private employers to use the same hiring/firing standards as the government? How did anti-discrimination and wrongful termination laws against private employers get justified by the constitution?
Your question doesn’t directly relate to the constitution. The constitution defines and limits the powers of the government.
The topic you’re referring to, then, stems from federal laws. The primary one is the Civil Rights Act of 1964 (Title VII), but there have been various additional ones since then that extend and modify these protections.
One could only bring it back to being a constitutional issue by saying that the EEO laws are in an area where the constitution forbids the government from meddling. Not much to go on, there.
OK, but do you know the history between the federal law then? The idea that the governement can’t discriminate itself seems to logically stem from what came before; but the idea that the government can prevent private citizens from being racist seems to be a bit more of a stretch. Does anyone know the history/circumstances of how that part got added to the bill?
To put it another way, you can link this issue to the Constitution by arguing that laws described in the OP – forbidding private employers from discriminating on the basis of race or gender – exceed Congress’s grant of authority in the Constitution. In making those laws, Congress used its power to regulate interstate commerce, and found that private discrimination impacted interstate commerce, thus making it possible for Congress to regulate private discrimination. This all happened in the 1960s, when Congress took a pretty broad look at American society and aimed their legislative cannon at a wide range of activities, including employment and more social discrimination (seating at restaurants, rooms at hotels, etc.).
So the short answer to the OP: “How did anti-discrimination and wrongful termination laws against private employers get justified by the constitution?” is, at least as it relates to racial issues, “Congress’s power over interstate commerce.”
The government doesn’t prevent anyone from being racist or sexist. What it does is make it illegal to deprive someone of a job based on race, gender, nationalty, religion, political beliefs, etc. So it’s not the thought but the action that’s illegal.
Robin
For a bit of flavor (heh), take a look at Katzenbach v. McClung, colloquially known as “Ollie’s Barbecue.” It’s a US Supreme Court case determining that Congress’s power over interstate commerce can reach a private restaurant that refused table service to blacks.
The Constitution makes state discrimination illegal. The Civil Rights Act of 1964 and its big amendment, theCivil Rights Act of 1991, were the ones that added and amended, respectively, the anti-discrimination laws you’re asking about. Congress didn’t like some recent Supreme Court decisions, so the 1991 Civil Rights Act was enacted to “correct” those decisions by changing the law.
But it wasn’t like there was a “bill” prohibiting state discrimination to which private discrimination was tacked on. Instead, Congress specifically passed laws prohibiting private discrimination pursuant to the commerce power.
To add to what Campion said, you may wonder how Joe’s Barber Shop’s activities can be regulated by the US federal government, when that federal government is restricted to regulating interstate commerce, and Joe’s Barber Shop is a local business. The “interstate commerce” was interpreted in an extremely broad way - Joe buys his scissors and hair tonic from out-of-state companies. No? Well, then he buys his combs and razor straps from out-of-state companies. No, they’re local too? Well, he buys his barber chairs, or cash registers, or there must be something that he buys from out of state. Therefore Congress has the power to regulate Joe’s hiring decisions. To people who are strict constructionist in their constitutional interpretation, this reasoning makes a mockery of having a constitution that describes a limited government.
Hmm. How about it Joe buys NOTHING from out of state. What do you say then?
Well, if you’re the Supreme Court you say that it doesn’t matter. Even if Joe is COMPLETELY self-contained, mining his own iron from his own land to make steel for his scissors, the fact is that people will go to his barbershop instead of another barbershop, and that other barbershop, which does use interstate commerce materials, is affected. And even if Joe cuts only his hair, that’s still enough: Joe himself is no longer patronizing another barbershop, and that affects interstate commerce.
See Wickard.
Oy.
What about the concept of economic importance of the act? How would a local barber be equivalent to a local grower of wheat exceeding his Federally mandated allotment?(which is what Wickard was about, if I understand)
The current concept of “interstate commerce” is an overreaction to the overly restrictive views of the Supreme Court in the early 1900’s. In short, they went from favoring a concept that limited federal power to a concept that favored expansive federal power. Wickard, Katzenbach, etc. simply follow the new idea that the Supreme Court won’t try to second guess the assumption of authority by Congress; if a rational relationship of any kind can be found between the activity regulated and the concept of interstate commerce, the Court won’t prevent the regulation unless some other Constitutional principle is violated.
The Court is equally unwilling to step in and assert that the Congress violates the Constitution when it attempts to tie up its purse strings with wholly unrelated legislation. There are other ways that the Court exercises “restraint” when it comes to injecting its own opinion of validity into a case. Of course, it is easy to assert a relatively hands-off approach to legislation when the Supreme Court’s general mindset is running hand-in-hand with the majority of the members of Congress. It gets much more difficult to act in a “restrained” fashion when the composition of the Court and the composition of Congress are politically at odds.
The “logic” (regarding the value of which I’m at one with Bricker) is that it doesn’t matter how much grain was grown; that any grain beyond quota was grown violated the statute. That the barber cuts hair, even his own (as Bricker in bringing up Wickard points out) means that someone else, someone constrained by the interstate commerce clause because he does use material transported across state lines, does not. Ergo, this barber, cutting only his own hair with material he produced himself, affects interstate commerce to some limited degree.
In point of fact, Congress will in general not concern itself with trifling issues like this. One haircut does not make a summer. So your point about economic importance is valid. Wickard only occurred because of the fact that control had to be exerted over crop production which was at that time largely in the hands of small farmers.
However, Congressional regulation of private enterprise for any reason whatsoever, including such things as prohibiting firing on racial grounds, needs to be hung on one of the Constitutional grants of power, and the interstate commerce clause is the one most flexible and amenable to such issues, since almost anything can in some way be tied to interstate commerce. Amazingly, Thomas Jefferson anticipated the reasoning in Wickard in protesting the grant of power to the Federal government (his example was the raising-of-an-Army clause) in a similar house-that-Jack-built Rube-Goldberg logic sequence (Jefferson himself used the house-that-Jack-built language).
The bottom line, however, is what DSYoung points out: there is a presumption of Constitutionality implicit in judicial self-restraint. If Congress passes the law, they must think they have the power to do so. And it is wise, say the self-restraint folks, to tread warily on overruling that presumption unless the power is used in egregiously wrong fashion. Congress, in pursuit of protecting minorities against unjust discrimination, did pass the Civil Rights Acts of 1964 and 1991. They hung their collective hat on the interstate commerce clause to justify doing so. As a simple matter of justice, it is the acts of the people engaging in racial discrimination, not the people suing or the government regulators, who are acting in an unjust manner. Therefore there is no egregious violation of the delegated power. And the courts will stretch matters to a very great extreme to attempt to do justice. That the impact on interstate commerce may be minimal is of no regard; one can identify some minor impact, which gives Congress power to proceed.
It is not making law out of whole cloth, as is often alleged of judicial activists. Rather, it is sustaining law made by elected representatives, albeit on a rather strained pretext.
Title VII have 15 person minimum. So barber can probably racist in hire.
Wll maybe not under state law but state legislative pwr not limited like federal gov
UR posts signif mr read if use hole wrds.
–Cliffy
Hey, he did use whole words. Just not very many of them.
Yeah, but he abrv8d some. And he sentence didn’t. Nowhaddeyemean?
My head hurts
How about you say some such intelligent instead of insults?
smartguysmile you’re new here, so let me explain.
The SDMB is not a chat room, and many of its members do not speak English as their primary language. Because of this, the board has evolved into a place where posters use complete words, complete sentences, more or less standard grammar, and avoid anything resembling l33tspeek.