Fulfilling the Promise of Title VII of the Civil Rights Act of 1964

I. INTRODUCTION2004 marked milestone anniversaries of two entwined building blocks of civil rights in the United States: Title VII of the Civil Rights Act of 1964(1) and Brown v. Board of Education.2 In a perfect world, Brown, decided in 1954, would guarantee equitable education, and Title VII would ensure that the students who receive that education would be treated fairly when they enter the workplace. As we all know, however, the world we live in is far from perfect.In 2003, one year before the anniversaries, the Supreme Court accepted that Brown's promise of anti-discrimination was insufficient and expanded Brown's premise by accepting diversity as a compelling justification for affirmative action in higher education.3 While granting a reprieve to civil rights with one hand, however, Justice O'Connor also announced in Grutter what some have cast as a deadline and others as an aspiration-that affirmative action would no longer be necessary in twenty-five years.4 Since then, many in the education and civil rights fields have been intensely considering Justice O'Connor's time limit.5 This article extends that consideration to the employment context and suggests a roadmap for future enforcement of Title VII.Title VII and affirmative action have already worked dramatic changes in the American workforce.6 From 1966 to 2002, the composition of the private workforce shifted from 60.9% white male to 36.9% white male, from 31.2% female to 48.2% female, and from 11.2% minority to 29.7% minority.7 Women, especially white women, have made marked gains in the higher-paying categories of jobs; people of color have increased their presence in these jobs, but at a slower rate than white women. In 1966, women held 9.3% of the official and managerial positions and 20.5% of the professional positions in private industry; by 2002, those numbers had grown to 36.4% and 51.7%, respectively.8 In 1966, African-Americans held 0.9% of the official and managerial positions and 1.7% of the professional positions; those numbers grew to 6.9 percent and 7.1 percent, respectively.9 Latinos have increased their representation from 0.6% of officials and managers to 5.3% and from 0.8% of professionals to 4.1%. 10 Asians and Pacific Islander Americans have grown from 0.2% of officials and managers and 1.3% of professionals to 3.3% of officials and managers and 8.4% of professionals.11 In fact, at a time when education and housing show trends of racial re-segregation,12 statistics measuring the progress of minorities and women in the workforce continue to show steady, albeit slow, improvement.13At the same time, it is equally evident that employment discrimination curtails people's opportunities on a daily basis. The same statistics that show a dramatic change in the overall composition of the workforce also show that, while the total representation of minorities has grown threefold, the percentage of African-American men in the workforce has barely increased.14 The African-American unemployment rate is almost twice that of whites-as it has been for the last twenty years.15 The overwhelming majority of officials, managers, and professionals in the private workforce, as well as those in local, state, and federal government, are still white.16There is also a growing body of social science data and reports from non-profit organizations showing that African-Americans and other minorities are simply not treated fairly in hiring practices. Using paired testers to examine the employment markets of Milwaukee, San Francisco, Boston, and Chicago, researchers found strong prejudices against African-American applicants. In Milwaukee, the study examined the effects of race and a criminal record on the likelihood of receiving a callback after submitting an application for entry-level positions requiring only a high school education.17 Each pair of testers consisted of two men of the same race with similar resumes; one man, however, was assigned to include a drug conviction and an eighteen-month prison sentence in his work history. …