18 U.C. Davis L. Rev. 721 (1984-1985)
The Similarity of Congressional and Judicial Lawmaking under Title VII of the Civil Rights Act of 1964

handle is hein.journals/davlr18 and id is 731 raw text is: The Similarity of Congressional and
Judicial Lawmaking Under Title VII of
the Civil Rights Act of 1964
Michael Evan Gold*
[Tihe process of research . . . which is imposed upon the judge in
finding the law seems to us very analogous to that incumbent on the legis-
lator himself. . . . [T]he considerations which ought to guide it are
. . . exactly of the same nature as those which ought to dominate legisla-
tive action itself since it is a question in each case, of satisfying, as best
may be, justice and social utility by an appropriate rule.'
Title VII of the Civil Rights Act of 19642 is one of the most impor-
tant pieces of labor legislation of the century. The Bill that became
Title VII was vigorously debated in Congress. Important interests were
at stake: on the one hand were minorities and women, who sought eco-
nomic justice; on the other hand were employers and incumbent em-
ployees, who feared (among other things) quotas and loss of seniority
status. These interests were strong, and the fair employment practices
(FEP) title of the civil rights bill was amended many times before it
was enacted. In the end, Congress struck a balance of interests and
passed a law.
After Title VII took effect, the courts were called upon to interpret
and apply the statute. Legal doctrine required them to honor congres-
sional intent. Yet, on four important issues, the courts initially reached
*Associate Professor, New York State School of Industrial and Labor Relations,
Cornell University. B.A. 1965, University of California, Berkeley; LL.B. 1967,
Stanford University. I am indebted to Ronald Ehrenberg, David Lyons, Risa
Lieberwitz, Maurice Neufeld, and Charles Rehmus for their detailed and insightful
criticism of the drafts of this Article. The remaining errors are my own.
77 (1919), quoted in B. CAROOZO, THE NATURE OF THE JUDICIAL PROCESS 119-20
2 42 U.S.C.  2000e to 2000e-17 (1982).

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