The Civil Rights Act: Unintended Consequences Writ Large

published in SpinTech, July 12, 1999

by Wendy McElroy

One of the most powerful arguments against government attempts to impose social norms is what Austrian economists call 'unintended consequences.' Every act has unforeseen and unintended consequences that may determine its impact more than any intended goal. Nobel Laureate F.A. Hayek argued that the most valuable of human institutions -- such as the free market or language -- spontaneously emerge from the "the unintended consequences of human action." That is, the institutions evolve naturally from the interactions of individuals who are just pursuing their own personal interests. As an example, consider English: the language evolved over time as people developed more sophisticated and standard communication in order to get what they wanted from others. Thus, English was "the result of human action but not of human design." Government did not create English.

In the Hayekian view, proper government plays a limited role in society, which is mostly confined to protecting freedom. When it steps outside these boundaries, government interrupts the desirable evolution of social institutions and mores. It creates social disharmony.

Government often expands its role in order to impose its own designs upon society, which are usually expressed as ideals. Such meddling is sometimes called social engineering. This process involves the belief that society can be engineered -- that is, it can be centrally planned and coordinated -- to embody ideals like socio-economic equality. In the first two volumes of Law, Legislation and Liberty, Hayek argued against social engineering. If nothing else, the powerful factor of unintended consequences ensured that government designs would have unpredictable results which were never envisioned by their human agents.

An example of the destructive consequences of social engineering can be seen in the Civil Rights Act (CRA) of 1964, which was originally meant to assuage racial discrimination.

An Unintended Consequence: Sexual Harassment

On June 19, 1963, President John F. Kennedy sent a Civil Rights Act to Congress. He was reacting to the civil unrest sparked by the black rights movement. American opinion had been galvanized by television images, such as that of Bull Connor, head of the police and fire departments in Birmingham, Alabama, turning high-pressure fire hoses on peaceful black children who were blown brutally down the pavement. The CRA met stiff political opposition and stood little chance of passage. Then, on November 22, 1963, Kennedy was assassinated. His successor Lyndon B. Johnson proclaimed, "No memorial oration or eulogy could more eloquently honor President Kennedy's memory than the earliest passage of the civil rights bill for which he fought so long." [1] The CRA became a tribute to a fallen leader.

Opponents scrambled to prevent the Act's passage. On February 8, 1964, Congressman Howard W. Smith of Virginia made a colossal blunder in an attempt to block the CRA in the House of Representatives. Rising to his feet, he announced, "...I offer an amendment." Essentially, his amendment called to insert the word 'sex' after the word 'religion' whenever the latter term appeared in Title VII of the CRA, which guaranteed 'fair' employment practices.

Smith had to assure the House repeatedly that he was serious. J. Edward Pawlick observes in Freedom Will Conquer Racism and Sexism, which chronicles the CRA's passage, "But the laughter became too great...and Congressman Smith had to stop." [2] Smith was deadly serious. He hoped that inserting the word 'sex' would tie the CRA to the controversial '60s issue of women's rights and, thus, kill the measure. He underestimated the political will behind it. Rather than delay the Act, the House approved Smith's amendment with only two hours debate. And so, from a bluff that backfired and with virtually no debate, the seeds were planted for a social policy that would alter American society. This was the drive to outlaw discrimination in the workplace and in academia, which ultimately led to sexual harassment laws. Yet such laws were far from any intention in the House three decades ago. They became an unintended consequence of the CRA.

Ten years after passage of the CRA, the first sexual harassment case reached the courts -- Barnes v. Train -- in which a woman claimed to have lost her job because she refused sex to her boss. The courts found that the CRA did not address her case. In 1986, however, the U.S. Supreme Court handed down a landmark decision on Meritor Savings Bank v. Vinson in which a woman said she had sex with her boss out of fear of losing her job. According to the Supreme Court, it did not matter if the woman had been "willing": what mattered was whether the boss' advances had been "welcomed." Then, in 1991, a new CRA built on the groundwork of the first: victims of sexual harassment could now be awarded compensatory and punitive damages. At this point, the cost of sexual harassment laws to society skyrocketed.

Today, virtually every American business of size has sexual harassment policies. The rampant fear of lawsuits is justified. In 1984, the revised guidelines of the Equal Employment Opportunity Commission -- which pursues such complaints -- held employers to be responsible for sexual harassment even though "the specific acts complained of were...forbidden by the employer and regardless of whether the employer knew or should have known of the occurrence." Lawsuits are only one cost of Smith's amendment gone astray.

Other costs include:

Consider the cost imposed upon one man, who is discussed in Daphne Patai's latest book on feminism, Heterophobia: Sexual Harassment and the Future of Feminism. He was an overweight professor who responded to a taunt shouted-out in class by a female student. She commented on the extreme 'size' of his chest. He countered that she had no such problem. In the ensuing political fall-out, the professor committed suicide. The university's main concern was that his death would discourage other 'abused' women from speaking out.

This vicious implementation of sexual harassment laws is another example of unintended consequences. The original impulse behind such seemed humanitarian, though misguided. Lin Farley's watershed work, Sexual Shakedown: The Sexual Harassment of Women on the Job (1978), chronicled appalling cases of sexual discrimination. But Farley fully acknowledged that women sometimes use sex to advance in the workplace. Thus, from a relatively balanced starting point in the '70s, sexual harassment of the '90s has evolved to such a totalitarian point that a six- year-old boy in North Carolina was recently suspended from the classroom for kissing a female student on the cheek.


Sexual harassment laws intrude into almost every workplace and into the education system from kindergarten to Ph.D. programs. They are only one of the dozens of unintended consequences of the CRA of 1964. Another example is affirmative action laws by which de facto racial and gender quotas have been widely established. Yet, during the debate on the CRA within the Senate, Senator Hubert Humphrey had proclaimed, "...there is nothing in it [the CRA] that will...require hiring, firing, or promotion of employees in order to meet a racial 'quota' or to achieve a certain racial balance....Title VII is designed to encourage hiring on the basis of ability and qualifications, not race or religion." [3] (Presumably the same applied to sexual 'quotas' and gender hiring.)

Government began to establish quotas almost immediately. A few months after the CRA passed, President Johnson created the Office of Federal Contract Compliance that issued guidelines to all companies doing business with the government. These guidelines were the beginning of quota system in the American workplace. From here, it was a slippery slope all the way down to sexual harassment laws.

In short, the impact of the CRA has been not been defined by the explicit goals of those who framed it, but by the unforeseeable behavior of those who implemented it. The Act has become 'unintended consequences' writ large. And, as Hayek predicted, it has disrupted both personal lives and social harmony.

[1] as quoted in J. Edward Pawlick, Freedom Will Conquer Racism and Sexism: The Civil Rights Act is damaging everyone in America, especially blacks and women. Wellesley, MA: Mustard Seeds, 1998, p.13.
[2] Ibid, p.29.
[3] 110 Con. Rec. 5092, p.6549.
[4] Time Oct. 21, 1991