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The Fight for Rights: An Interview With Nicholas Katzenbach

April 10, 2012
Related Topics: Top Stories - Frontpage, Affirmative Action, Discrimination and EEOC Compliance
Nicholas Katzenbach

Like other components of the Civil Rights Act of 1964, Title VII was the product of a hard-nosed political compromise between the Democratic White House and Republican lawmakers. A key issue was exactly what powers should be given to the new Equal Employment Opportunity Commission. An early proposal from a congressional subcommittee envisaged an EEOC with enforcement powers but that went too far for conservative Republicans who were ideologically opposed to administrative regulation.

The Kennedy and then Johnson administrations' point men in the negotiations were two top Justice Department officials—Deputy Attorney General Nicholas Katzenbach and Burke Marshall, the assistant attorney general in charge of the Civil Rights Division. After the House minority leader said he would not support a fair employment provision in the omnibus civil rights bill, they helped craft a compromise. Patterned after a Republican bill—known as the Griffin bill, named after former Michigan Republican Rep. Robert Griffin—that had been approved by a House committee a few years earlier, it allowed the EEOC to file lawsuits on behalf of bias complainants but gave the agency no power to initiate litigation itself.

The Civil Rights Act passed the House in February 1964 but once it went to the Senate, Everett Dirksen, a Republican from Illinois who was the Senate minority leader, emasculated the EEOC further, amending Title VII so that only the Justice Department could sue and then only after finding a "pattern or practice of resistance" to anti-discrimination measures by an employer. The EEOC could mediate and conciliate but had no statutory authority to enforce the law.

The Dirksen amendments to Title VII were, in large part, incorporated into the omnibus law signed by President Lyndon Johnson on July 2, 1964. But it wasn't until eight years later—with the Equal Employment Opportunity Act of 1972—that Congress beefed up employment protections by giving the EEOC the power to conduct its own enforcement litigation.

In an interview with Workforce Management contributor Matthew Heller, Katzenbach, now 90, looked back at the genesis of Title VII and its impact on the employment landscape:

Workforce Management: What stands out for you in the legislative process that created Title VII?

Nicholas Katzenbach: It was felt by almost everybody—at least almost all Democrats—that we had to have some kind of fair employment provision in the [omnibus civil rights] bill. But we didn't think a fair employment provision had a chance of passing because of Republican opposition. Then Rep. [Frank] Thompson [a liberal Democrat from New Jersey] said to me, 'Why don't you use the Griffin bill? It's not perfect but it is a fair employment bill.' The Republicans would have to support it because it was their own bill. We used that version of Title VII because it was the Republican version.

WM: You still had to run the gauntlet of Sen. Dirksen.

Katzenbach: I was in his office almost every day for two months [working on the bill]. He made no substantive changes in the bill but there were cosmetic changes in every paragraph.

WM: Isn't it true, though, that the civil rights community was not happy with Title VII? The Leadership Conference on Civil Rights called it 'virtually meaningless,' and Clarence Mitchell, the NAACP's chief lobbyist, said you and Burke Marshall were not 'as tough in adhering to their position ... as they could have been.'

Katzenbach: It was a pretty lousy provision. It was too cumbersome. ... But it was the best that we could do. We wanted to get something passed and then amend it in the future. It's a lot easier to amend a law than do a completely new one. The chance of a fair employment provision was next to nothing. [Attorney General] Bobby Kennedy ... wanted to get as much of it as he could. Bobby liked to win. So did I.

WM: You can't celebrate Pyrrhic victories in politics?

Katzenbach: I don't think you can. You take what you can get. Then you go back and make it better. There's nothing to stop you from trying to get it amended. We very seriously doubted that we could get any civil rights bill out of there, mainly because Southerners had won on filibusters twice in the '50s.

WM: How would you assess the impact of Title VII?

Katzenbach: Many businesses have at least attempted to sincerely be nondiscriminatory in their employment practices. In that sense, I think it has worked. Before Title VII, government contractors were already required to be nondiscriminatory. With Title VII, we took that to the next level down. Private employers followed [the public sector's] example.

WM: Has the Title VII vision of fair employment been achieved?

Katzenbach: I don't think we've achieved it yet. There's an awful lot of bias in our society still.

WM: Officials in the Johnson administration predicted that Title VII would be a disappointment. It might 'suffer from a fatal flaw of providing a legal solution for what is essentially a social and economic problem.' What do you think of that assessment?

Katzenbach: I think you need both legal and social change. Education is important. It's important that blacks and whites have more association with each other. You can't just [address bias] with legislation but it can help.

WM: A year before the Civil Rights Act was signed, you had your famous confrontation with Alabama Gov. George Wallace at the 'schoolhouse door' of the University of Alabama in Tuscaloosa as he attempted to stop the enrollment of two black students. What do you remember most vividly about that encounter?




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