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41 Hastings L.J. 1301 (1989-1990)
Public Remedies for Private Wrongs: Rethinking the Title VII Back Pay Remedy

handle is hein.journals/hastlj41 and id is 1327 raw text is: Article

Public Remedies for Private Wrongs:
Rethinking the Title VII Back
Pay Remedy
by
MINNA J. KoTKIN*
At the time Congress passed Title VII of the Civil Rights Act of
1964,1 many of America's political and business leaders were persuaded
that something had to be done about the economic status of racial minor-
ities if domestic peace was to be preserved.2 The Supreme Court had
* Professor of Law, Brooklyn Law School. A.B. 1972, Barnard College; J.D. 1975,
Rutgers University School of Law. I gratefully acknowledge the research assistance of Harvey
Mechanic, Robin Smith and Geanine Towers-Dioso and the support provided by the Brooklyn
Law School summer research stipend program.
1. The Act was signed into law by President Lyndon B. Johnson on July 2, 1964. Civil
Rights Act of 1964, Pub. L. No. 88-352, §§ 701-716, 78 Stat. 241, 253-66 (codified as amended
at 42 U.S.C. § 2000e-1 to -16 (1981)). Title VII addressed employment discrimination; other
portions of the Act dealt with discrimination in public accommodations and in education as
well as voting rights.
2. The sense of urgency surrounding the passage of the Act is reflected, albeit in mea-
sured tones, in the Judiciary Committee Report accompanying House of Representatives bill
number 7152, which was eventually enacted after some modifications. The Report states:
Considerable progress has been made in eliminating discrimination in many areas
because of local initiative either in the form of State laws and local ordinances or as
the result of voluntary action. Nevertheless, in the last decade it has become increas-
ingly clear that progress has been too slow and that national legislation is required to
meet a national need which becomes ever more obvious. That need is evidenced, on
the one hand, by a growing impatience by the victims of discrimination with its con-
tinuance and, on the other hand, by a growing recognition on the part of all of our
people of the incompatibility of such discrimination with our ideals and the princi-
ples to which this country is dedicated.
H.R. REP. No. 914, 88th Cong., 2d Sess., reprinted in 1964 U.S. CODE CONG. & ADMIN.
NEWS 2391, 2393 [hereinafter HOUSE REPORT].
T. KHEEL, GUIDE TO FAIR EMPLOYMENT PRACTICES (1964), explicitly refers to the
business community's attitude toward racial minorities' economic status. Kheel's guide, pub-
lished shortly after Title VII's passage, was directed toward assisting employers with Title VII
compliance. It provides 11 case studies of the efforts of major corporations to broaden job
opportunities for minority workers. Kheel's underlying theme is that, although work force

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