Why Donald Trump Will Fail to Sabotage Employment Discrimination Law (David Oppenheimer)

For our first seminar in 2018, we were pleased to host David B. Oppenheimer, Clinical Professor of Law at Berkeley, University of California, to talk about ‘Civil or Administrative Enforcement of Anti-Discrimination Law: Why Donald Trump will Fail in His Efforts to Sabotage Employment Discrimination Law’.

In the debates over the 1964 Civil Rights Act, one of the most contentious issues was the method that would be used to enforce the employment discrimination provision (Title VII). The big fight was over whether to have an administrative enforcement agency (the EEOC) with adjudicatory authority, and only limited appellate review by the courts, or to instead have a right to bring a civil action, with the agency given only limited investigatory authority. The private right of action won out, in the compromise that broke the Senate filibuster.

Fast forward to 1981, when Ronald Reagan entered the White House with a promise to end enforcement of the Civil Rights Laws. He decimated the Justice Department’s Civil Rights Division and the Office of Federal Contract Compliance, but he had very little impact on the private enforcement of Title VII. Now Trump has the same agenda, and agencies are being taken over by their sworn enemies. But private enforcement will probably survive. The 1964 choice looks better and better. And here’s the kicker: who wanted private enforcement of Title VII? The conservative business community, because they were afraid of big government agencies, and assumed that judges and juries would protect businesses against civil rights plaintiffs. The civil rights groups wanted agency adjudication, and regarded the compromise as a major loss.