Black Workers in White Unions: Job Discrimination in the United States

By William B. Gould | Go to book overview

3 The Substantive Law of Title VII: An Introduction

Title VII and the "Private Attorney General"

Class Representation

Title VII of the Civil Rights Act of 1964 is the most comprehensive law relating to employment discrimination; most of the law that has evolved in this field has developed under that statute. Under the 1964 act, the Fifth Circuit has evolved the concept that not all Negro workers alleging discrimination on the basis of race need file charges with the EEOC and pursue available administrative remedies, inasmuch as "racial discrimination is by definition class discrimination."1* As in the public-accommodation cases arising under Title II of the Civil Rights Act of 1964, the plaintiff is deemed to be acting "not for himself alone" but, rather, as a "private attorney general" who puts on the "mantle of the sovereign" in the public interest.2 The court and the EEOC have consistently held that a complaint filed with the EEOC protesting an individual injustice acts as a linchpin for an EEOC investigation into all employer or union practices related to race.3

Said the Fifth Circuit in Jenkins v. United Gas Corporation "In dollars, Employee's claim for past due wages may be tiny. But before a Court as to which there is no jurisdictional minimum...it is enough on which to launch a full scale inquiry into the charged unlawful motivation in employment practices. It is even more so considering the prayer for injunction as a protection against repetition of such conduct in the future."4 The court also specifically noted the great potential for divide-and-conquer or "resist-and-withdraw" techniques when dealing with individuals rather than a group. This potential is particularly important in race cases in which an excluded group has been systematically fenced out and a slight advantage provided to one worker may effectively undermine group solidarity.5

Moreover, the courts have been particularly concerned about the danger that defendant unions and employers may attempt to play off one member of a group against another once litigation is imminent or has commenced. In such circumstances "a last minute change of heart is suspect, to say the least."6 As the Fifth Circuit has said, "What has been adopted can be repealed, and what has been appealed can be re-appealed."7 The same court said in Jenkins that "in the face of

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