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Discrimination in employment on the basis of race, color, national origin, sex, and religion has been against the law since 1964, and while norms have certainly changed in that time, the number of allegations of discrimination in the workplace grows every year, suggesting that something is still not right. Figuring out what is a messy question, which is why studies of enforcement and interpretations of Title VII are so welcome to those of us interested in this area.

Margaret Lemos’s current article is no exception. Although the paper focuses mostly on an important gap in the administrative law literature—that is, even though there has been much written on why Congress delegates and how it chooses to delegate at all, very little has been written on how Congress chooses what institution to delegate power to and how to shape that delegation—it also reveals important data about enforcing Title VII, in large part because that statute provides her case study. Moreover, to the extent that so much of the employment discrimination literature focuses on issues concerning the substance of the law or lack thereof, a study of who is making that law fills an important gap in this literature as well.

Lemos’s main thesis has two parts: 1. we need to understand that Congress chooses to delegate power to the courts in addition to or as an alternative to delegating to agencies; and 2. as a consequence, we also need to understand how those delegates act in order to understand what Congress does or should consider in deciding between them. As Lemos points out, delegation is likely inevitable and often desirable, from institutional, pragmatic, and functional perspectives. And the lessons she draws from her study are insightful and somewhat surprising.

The bulk of Lemos’s article describes conclusions reached by analysis of every case involving an interpretation or application of Title VII decided by the Supreme Court after oral argument up through the 2007 term. While both the EEOC and the Supreme Court have adopted expansive interpretations of Title VII, or the Court has generally followed the agency’s lead in doing so, the two institutions have diverged about one-third of the time, with the EEOC interpreting the statute more protectively of traditionally disempowered groups more often than has the Court. Interpretations by both institutions have been surprisingly stable over time, despite concerns over agency control by the political branches. Also surprisingly, courts have not been uniform across jurisdictions, creating a greater divergence of interpretation than has the EEOC.

Lemos identifies a couple of institutional causes of the difference. The first concerns the methodology of each. Courts have focused on evidence of congressional intent while the EEOC has focused on the purpose of the statute more as a conceptual matter. The second cause is related to the institutional nature of each. The courts are acting in a more limited remedial manner in the context of an individual case, where the EEOC views itself as an advocate for victims of discrimination precisely because it lacks enforcement authority.

Based on this analysis, Lemos offers a couple of important lessons to be drawn. First, courts are best suited for enforcing statutes that fit the model of righting wrongs or awarding a remedy in a particular instance. Second, an agency will be better at regulation that is not tied to wrongdoing. And third, courts are not as stable as might think, while agencies can be significantly more stable than we would expect.

Title VII is a great case study because it so clearly delegates interpretive power by failing to define such key terms as “employee,” “race,” sex,” and “discriminate,” and because the statute encompasses some delegation to an agency as well as primary delegation to the courts. At the same time, as she acknowledges, studying this primary/secondary delegation has limitations. It doesn’t tell us much about how an agency might act if it alone had enforcement power or how the courts might act if they alone had enforcement power.

Title VII is also a good case study because it was enacted in the context of much disagreement about both the goals Congress should pursue and the means by which it should reach them. Moreover, we have significantly developed legislative history that deals explicitly with this choice of delegation. From the late 1960s and early 1970s, there was significant debate in Congress, surrounding whether to give the EEOC cease and desist authority or to leave the remedial aspects of the statute to court enforcement.

Lemos’s article is a must-read for anyone thinking about how to end discrimination through law, and a great starting point for further study about how Congress might choose to delegate enforcement depending on its goals.

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Cite as: Marcia L. McCormick, Enforcement and Institutions, JOTWELL (June 17, 2010) (reviewing Margaret H. Lemos, The Consequences of Congress’s Choice of Delegate: Judicial and Agency Interpretations of Title VII, 63 Vand. L. Rev. 363 (2010)),