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There is a long history of federal action (and inaction) in the area of racial discrimination. Federal Civil Rights Acts were passed in 1866 and 1871. They were narrowly interpreted and did not prevent public or private discrimination. In the early 20th century, up into the 1930s, the federal government made few attempts to regulate private employment contracts. In 1941, however, an executive order from President Roosevelt banned discrimination by the federal government and its defense contractors. Even so, legislation to strengthen the order failed to pass in 1942. Other bills intended to outlaw discrimination by private employers also failed.

In general, the Supreme Court of the late 1930s and 1940s became more sympathetic to legislation that restricted the rights of employers. In particular, a series of decisions suggested that a law prohibiting racial discrimination might withstand a court challenge. The 1964 law passed in a new political situation including a well organized civil rights movement, an important block of black voters in the north, and the death of president Kennedy. It banned racial discrimination in the private sector. All large employers (along with labor unions and employment agencies) were covered.

The debate over the 1964 law was extensive. Critics charged that it was unconstitutional, that it was an unwarranted expansion of federal power, that it imposed difficult recordkeeping requirements, that it violated the rights of employers and unions to hire or admit whomever they wished, that it would undermine seniority systems, and that it would allow statistical imbalances to prove discrimination. Supporters argued that it would eliminate a serious injustice, reduce the unemployment rate of blacks, bring more blacks into better jobs, and help the economy by better utilizing black workers.