Making Rights Work: Legal Mobilization at the Agency Level

This article discusses how McCann's theory on legal mobilization and social change is generalizable to the legal decisions of agencies. I demonstrate how the Equal Employment Opportunity Commission (EEOC) routinely delayed and denied Title VII employment rights on the basis of sex and how this resulted in the formation of the National Organization for Women (NOW) to ensure that the sex provision of Title VII was enforced. The article also discusses the influence of NOW in shaping the first years of Title VII law and the organization's role in reversing EEOC decisions denying rights under the sex provision of the law.Title VII of the Civil Rights Act (CRA) of 1964 protects against unlawful employment practices that create unequal employment opportunities. When the law passed, these protections extended to hiring, firing, compensation, terms, conditions, and privileges of employment as well as employment opportunity and status on the basis of race, color, religion, sex, or national origin. The CRA of 1964 also created the Equal Employment Opportunity Commission (EEOC) to enforce Title VII of the law. When the EEOC opened its doors on July 2, 1965, it faced an instant backlog of nearly 1,000 claims and the number of claims and backlog continued to grow (Pedriana and Stryker 2004:711). By the end of the 1969 fiscal year, less than half of the over 54,000 Title VII claims received by the agency finished investigation. Of the 4,793 cases it had decided, the agency determined that only about 2,493 (52%) had "reasonable cause" to suspect discrimination had occurred. From these claims, the EEOC conciliated 1,350 claims of discrimination. As a result, 729 of these claims were unsuccessfully resolved over the four-year period (Wolkinson 1973: 2). This left a relatively small portion of the over 54,000 claims with even the potential for a lawsuit via the agency granting claimants the right to sue in the courts. From there, individuals still had the financial, educational, and social obstacles of bringing a claim to the courts (Felstiner, Abel, and Sarat 1980-1981; Galanter 1974). As a result, most of the Title VII legal claims brought before 1969 were interpreted by the EEOC (Wolkinson 1973: 2). By eliminating the implementation constraint (Rosenberg 2008) and mitigating some of the obstacles of bringing claims to the courts, new and novel legal claims by individuals have the potential to influence the law and society through the claims they submit to agencies. Individual claims submitted to agencies not only place issues on the agenda of an agency but also present visions of law that may be reinforced or abated by the agency. As such, individual claims and agency responses to them have the potential to spur interest group action and social change. Yet, scholars have paid little attention to how the legal decisions of government agencies hold the potential to provoke interest group mobilization and social change.Rather than focus on the relatively small number of interpretations regarding Title VII law made in the courts during these years, this article explores the far more numerous and everyday interpretations of Title VII made by the EEOC through its responses to claims.1 As scholars, we tend to focus on judicial interpretations as the main source of law. Yet, agency rules and regulations have "the same weight as congressional legislation, presidential executive orders, and judicial decisions" (Kerwin 1999: 3). By shifting the focus from the courts and onto agency lawmaking, I demonstrate the applicability and potential for court-based theories to inform this other type of "lawmaking by unelected officials" (Kerwin 1999). I argue that scholars should not neglect or relegate to the sidelines the equally important role of agency made law and the ways in which rights are made either real or symbolic by government agencies (Epp 2009). Likewise, we need to understand how agencies make law, like the courts, in response to the legal claims made by individuals and interest groups (Zemans 1983). …