Unequal and unfair treatment on the basis of such characteristics as race, sex, religion, national origin, and disability, committed not by the government but by individuals and nongovernmental organizations.
Through the Civil Rights Act of 1875
Although the Court’s ruling that Congress may address only public, not private, discrimination under the Fourteenth Amendment remained largely intact, the Court allowed some application of this amendment to private actors when they act in concert with or in place of the state. It also greatly expanded its view of what constitutes a badge of slavery, giving Congress the power to remedy racial discrimination under the Thirteenth Amendment. In addition, it allowed Congress to attack private discrimination through its spending and commerce clause powers.
The equal protection clause
Private actors may also be prohibited from discrimination if the government encourages or becomes significantly involved in their activities. In Burton v. Wilmington Parking Authority
After the Civil War, Congress passed statutes giving African Americans “the same right as white persons” to own or lease property and to enter into contracts. Because of the restrictive interpretation given the Thirteenth Amendment in the Civil Rights Cases, these statutes did not apply to private discrimination until the 1960’s. In Jones v. Alfred H. Mayer Co.
The most important piece of antidiscrimination legislation passed in the modern civil rights era was probably the Civil Rights Act of 1964. It prohibited many kinds of discrimination, both public and private. Several of its most important titles were directed at private discrimination. Title II prohibited racial discrimination by hotels, restaurants, and other places of public accommodations. Title VII prohibited discrimination in employment on the basis of race, color, religion, sex, and national origin. Congress used its power under the commerce clause
The Court’s very broad interpretation of Congress’s commerce clause power proved extremely useful in passing legislation prohibiting many types of private discrimination. Unlike its power under the Thirteenth Amendment, Congress is not limited to prohibiting only racial discrimination. In addition to prohibiting employment discrimination under Title VII, Congress also used its commerce clause power in passing the Age Discrimination in Employment Act
Congress may also use its spending power to prohibit certain kinds of private discrimination by organizations receiving federal funds. For example, Title IX of the Education Amendments of 1972
Abraham, Henry, and Barbara Perry. Freedom and the Court. 7th ed. Oxford: Oxford University Press, 1998. Gressman, Eugene. “The Unhappy History of Civil Rights Legislation.” Michigan Law Review 50 (1952): 1323. Viera, Norman. Constitutional Civil Rights. 3d ed. St. Paul, Minn.: West Publishing, 1998. Williams, Juan. Eyes on the Prize: America’s Civil Rights Years, 1954-1965. New York: Penguin Books, 1987.
Civil Rights Acts
Civil rights and liberties
Commerce, regulation of
Race and discrimination