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Civil Rights Act of 1964
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This article is about the 1964 Civil Rights Act. For other American laws called Civil Rights Acts, see Civil Rights Act.
Civil Rights Act of 1964
Long title
An act to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States of America to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.
Enacted by
the 88th United States Congress
Effective
July 2, 1964
Citations
Public law
[http://library.clerk.house.gov/reference-files/PPL_CivilRightsAct_1964.pdf 88-352
1981 U.S.C. § 1996b]
Statutes at Large
78 Stat. 241
Codification
Acts amended
Civil Rights Act of 1957
Civil Rights Act of 1960
Titles amended
42
Legislative history
Introduced in the House as H.R. 7152 by Emanuel Celler (D–NY) on June 20, 1963
Committee consideration by Judiciary
Passed the House on February 10, 1964[1] (290–130)
Passed the Senate on June 19, 1964[2] (73–27) with amendment
House agreed to Senate amendment on July 2, 1964[3] (289–126)
Signed into law by President Lyndon B. Johnson on July 2, 1964
Major amendments
Equal Employment Opportunity Act of 1972[4]
Civil Rights Act of 1991
No Child Left Behind Act
Lilly Ledbetter Fair Pay Act of 2009
United States Supreme Court cases
Heart of Atlanta Motel, Inc. v. United States (1964)
Katzenbach v. McClung (1964)
Alexander v. Holmes County Board of Education (1969)
Griggs v. Duke Power Co. (1971)
Ricci v. DeStefano (2009)
The Civil Rights Act of 1964 (Pub.L. 88–352, 78 Stat. 241, enacted July 2, 1964) is a landmark civil rights and US labor law in the United States[5] that outlaws discrimination based on race, color, religion, sex, or national origin.[6] It prohibited unequal application of voter registration requirements, racial segregation in schools, employment, and public accommodations.
Powers given to enforce the act were initially weak, but were supplemented during later years. Congress asserted its authority to legislate under several different parts of the United States Constitution, principally its power to regulate interstate commerce under Article One (section 8), its duty to guarantee all citizens equal protection of the laws under the Fourteenth Amendment and its duty to protect voting rights under the Fifteenth Amendment. The Act was signed into law by President Lyndon B. Johnson on July 2, 1964, at the White House.
Contents
[hide]
1 Origins
2 Legislative history
2.1 House of Representatives
2.2 Johnson's appeal to Congress
2.3 Lobbying Efforts
2.4 Passage in the Senate
2.5 Vote totals
2.5.1 By party
2.5.2 By party and region
3 Women's rights
4 Desegregation
5 Political repercussions
6 Major features
6.1 Title I
6.2 Title II
6.3 Title III
6.4 Title IV
6.5 Title V
6.6 Title VI
6.7 Title VII
6.7.1 Precedents and history
6.8 Title VIII
6.9 Title IX
6.10 Title X
6.11 Title XI
7 Continued resistance
8 Amendments
9 Subsequent court rulings
10 Influence
11 See also
12 Notes
13 References
14 External links
Origins[edit]
First page of the Civil Rights Act of 1964
John F. Kennedy addresses the nation about Civil Rights on June 11, 1963
The bill was called for by President John F. Kennedy in his Report to the American People on Civil Rights of June 11, 1963,[7] in which he asked for legislation "giving all Americans the right to be served in facilities which are open to the public—hotels, restaurants, theaters, retail stores, and similar establishments", as well as "greater protection for the right to vote". Kennedy delivered this speech following the immediate aftermath of the Birmingham campaign and the growing number of demonstrations and protests throughout the southern United States. Kennedy was moved to action following the elevated racial tensions and wave of black riots in the spring 1963.[8]
Emulating the Civil Rights Act of 1875, Kennedy's civil rights bill included provisions to ban discrimination in public accommodations, and to enable the U.S. Attorney General to join in lawsuits against state governments which operated segregated school systems, among other provisions. However, it did not include a number of provisions deemed essential by civil rights leaders including protection against police brutality, ending discrimination in private employment, or granting the Justice Department power to initiate desegregation or job discrimination lawsuits.[9]
Legislative history[edit]
House of Representatives[edit]
Lyndon B. Johnson signs the Civil Rights Act of 1964. Among the guests behind him is Martin Luther King, Jr.
On June 11, 1963, President Kennedy met with the Republican leaders to discuss the legislation before his television address to the nation that evening. Two days later, Senate Minority Leader Everett Dirksen and Senate Majority Leader Mike Mansfield both voiced support for the president's bill, except for provisions guaranteeing equal access to places of public accommodations. This led to several Republican Congressmen drafting a compromise bill to be considered. On June 19, the president sent his bill to Congress as it was originally written, saying legislative action was "imperative".[10][11] The president's bill went first to the House of Representatives, where it was referred to the Judiciary Committee, chaired by Emanuel Celler, a Democrat from New York. After a series of hearings on the bill, Celler's committee strengthened the act, adding provisions to ban racial discrimination in employment, providing greater protection to black voters, eliminating segregation in all publicly owned facilities (not just schools), and strengthening the anti-segregation clauses regarding public facilities such as lunch counters. They also added authorization for the Attorney General to file lawsuits to protect individuals against the deprivation of any rights secured by the Constitution or U.S. law. In essence, this was the controversial "Title III" that had been removed from the 1957 and 1960 Acts. Civil rights organizations pressed hard for this provision because it could be used to protect peaceful protesters and black voters from police brutality and suppression of free speech rights.
Kennedy called the congressional leaders to the White House in late October, 1963 to line up the necessary votes in the House for passage.[12] The bill was reported out of the Judiciary Committee in November 1963, and referred to the Rules Committee, whose chairman, Howard W. Smith, a Democrat and avid segregationist from Virginia, indicated his intention to keep the bill bottled up indefinitely.
Johnson's appeal to Congress[edit]
The assassination of John F. Kennedy on November 22, 1963, changed the political situation. Kennedy's successor as president, Lyndon Johnson, made use of his experience in legislative politics, along with the bully pulpit he wielded as president, in support of the bill. In his first address to a joint session of Congress on November 27, 1963, Johnson told the legislators, "No memorial oration or eulogy could more eloquently honor President Kennedy's memory than the earliest possible passage of the civil rights bill for which he fought so long."[13]
Judiciary Committee chairman Celler filed a petition to discharge the bill from the Rules Committee; it required the support of a majority of House members to move the bill to the floor. Initially Celler had a difficult time acquiring the signatures necessary, with many congressmen who supported the civil rights bill itself remaining cautious about violating normal House procedure with the rare use of a discharge petition. By the time of the 1963 winter recess, 50 signatures were still needed.
The record of the roll call vote kept by the House Clerk on final passage of the bill.
After the return of Congress from its winter recess, however, it was apparent that public opinion in the North favored the bill and that the petition would acquire the necessary signatures. To avert the humiliation of a successful discharge petition, Chairman Smith relented and allowed the bill to pass through the Rules Committee.
Lobbying Efforts[edit]
Lobbying support for the Civil Rights Act was coordinated by the Leadership Conference on Civil Rights, a coalition of 70 liberal and labor organizations. The principal lobbyists for the Leadership Conference were civil rights lawyer Joseph L. Rauh Jr. and Clarence Mitchell, Sr. of the NAACP.[14]
Passage in the Senate[edit]
Martin Luther King, Jr. and Malcolm X at the United States Capitol on March 26, 1964. Both men had come to hear the Senate debate on the bill. This was the only time the two men ever met; their meeting lasted only one minute.[15]
Johnson, who wanted the bill passed as soon as possible, ensured that the bill would be quickly considered by the Senate. Normally, the bill would have been referred to the Senate Judiciary Committee, chaired by Senator James O. Eastland, Democrat from Mississippi. Given Eastland's firm opposition, it seemed impossible that the bill would reach the Senate floor. Senate Majority Leader Mike Mansfield took a novel approach to prevent the bill from being relegated to Judiciary Committee limbo. Having initially waived a second reading of the bill, which would have led to it being immediately referred to Judiciary, Mansfield gave the bill a second reading on February 26, 1964, and then proposed, in the absence of precedent for instances when a second reading did not immediately follow the first, that the bill bypass the Judiciary Committee and immediately be sent to the Senate floor for debate.
When the bill came before the full Senate for debate on March 30, 1964, the "Southern Bloc" of 18 southern Democratic Senators and one Republican Senator led by Richard Russell (D-GA) launched a filibuster to prevent its passage.[16] Said Russell: "We will resist to the bitter end any measure or any movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our (Southern) states."[17]
The most fervent opposition to the bill came from Senator Strom Thurmond (D-SC): "This so-called Civil Rights Proposals, which the President has sent to Capitol Hill for enactment into law, are unconstitutional, unnecessary, unwise and extend beyond the realm of reason. This is the worst civil-rights package ever presented to the Congress and is reminiscent of the Reconstruction proposals and actions of the radical Republican Congress."[18]
After 54 days of filibuster, Senators Hubert Humphrey (D-MN), Mike Mansfield (D-MT), Everett Dirksen (R-IL), and Thomas Kuchel (R-CA), introduced a substitute bill that they hoped would attract enough Republican swing votes in addition to the core liberal Democrats behind the legislation to end the filibuster. The compromise bill was weaker than the House version in regard to government power to regulate the conduct of private business, but it was not so weak as to cause the House to reconsider the legislation.[19]
On the morning of June 10, 1964, Senator Robert Byrd (D-W.Va.) completed a filibustering address that he had begun 14 hours and 13 minutes earlier opposing the legislation. Until then, the measure had occupied the Senate for 60 working days, including six Saturdays. A day earlier, Democratic Whip Hubert Humphrey of Minnesota, the bill's manager, concluded he had the 67 votes required at that time to end the debate and end the filibuster. With six wavering senators providing a four-vote victory margin, the final tally stood at 71 to 29. Never in history had the Senate been able to muster enough votes to cut off a filibuster on a civil rights bill. And only once in the 37 years since 1927 had it agreed to cloture for any measure.[20]
"Remarks upon Signing the Civil Rights Act of 1964"
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Public statement by Lyndon B. Johnson of July 2, 1964 about the Civil Rights Act of 1964.
"Remarks upon Signing the Civil Rights Act of 1964"
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On June 19, the substitute (compromise) bill passed the Senate by a vote of 73–27, and quickly passed through the House-Senate conference committee, which adopted the Senate version of the bill. The conference bill was passed by both houses of Congress, and was signed into law by President Johnson on July 2, 1964.[21]
Vote totals[edit]
Totals are in "Yea–Nay" format:
The original House version: 290–130 (69–31%).
Cloture in the Senate: 71–29 (71–29%).
The Senate version: 73–27 (73–27%).
The Senate version, as voted on by the House: 289–126 (70–30%).
By party[edit]
The original House version:[22]
Democratic Party: 152–96 (61–39%)
Republican Party: 138–34 (80–20%)
Cloture in the Senate:[23]
Democratic Party: 44–23 (66–34%)
Republican Party: 27–6 (82–18%)
The Senate version:[22]
Democratic Party: 46–21 (69–31%)
Republican Party: 27–6 (82–18%)
The Senate version, voted on by the House:[22]
Democratic Party: 153–91 (63–37%)
Republican Party: 136–35 (80–20%)
By party and region[edit]
Note: "Southern", as used in this section, refers to members of Congress from the eleven states that made up the Confederate States of America in the American Civil War. "Northern" refers to members from the other 39 states, regardless of the geographic location of those states.[24]
The original House version:
Southern Democrats: 7–87 (7–93%)
Southern Republicans: 0–10 (0–100%)
Northern Democrats: 145–9 (94–6%)
Northern Republicans: 138–24 (85–15%)
The Senate version:
Southern Democrats: 1–20 (5–95%) (only Ralph Yarborough of Texas voted in favor)
Southern Republicans: 0–1 (0–100%) (John Tower of Texas)
Northern Democrats: 45–1 (98–2%) (only Robert Byrd of West Virginia voted against)
Northern Republicans: 27–5 (84–16%)
Women's rights[edit]
Engrossing copy of H.R. 7152, which added sex to the categories of persons against whom the bill prohibited discrimination, as passed by the House of Representatives.[25]
Just one year earlier, the same Congress had passed the Equal Pay Act of 1963, which prohibited wage differentials based on sex. The prohibition on sex discrimination was added to the Civil Rights Act by Howard W. Smith, a powerful Virginia Democrat who chaired the House Rules Committee and who strongly opposed the legislation. Smith's amendment was passed by a teller vote of 168 to 133. Historians debate Smith's motivation, whether it was a cynical attempt to defeat the bill by someone opposed to civil rights both for blacks and women, or an attempt to support their rights by broadening the bill to include women.[26][27][28][29] Smith expected that Republicans, who had included equal rights for women in their party's platform since 1944,[30] would probably vote for the amendment. Historians speculate that Smith was trying to embarrass northern Democrats who opposed civil rights for women because the clause was opposed by labor unions. Representative Carl Elliott of Alabama later claimed, "Smith didn't give a damn about women's rights...he was trying to knock off votes either then or down the line because there was always a hard core of men who didn't favor women's rights,"[31] and the Congressional Record records that Smith was greeted by laughter when he introduced the amendment.[32]
Smith asserted that he was not joking; he sincerely supported the amendment and, indeed, along with Rep. Martha Griffiths,[33] he was the chief spokesperson for the amendment.[32] For twenty years Smith had sponsored the Equal Rights Amendment (with no linkage to racial issues) in the House because he believed in it. He for decades had been close to the National Woman's Party and its leader Alice Paul, who was also the leader in winning the right to vote for women in 1920, the author of the first Equal Rights Amendment, and a chief supporter of equal rights proposals since then. She and other feminists had worked with Smith since 1945 trying to find a way to include sex as a protected civil rights category. Now was the moment.[34] Griffiths argued that the new law would protect black women but not white women, and that was unfair to white women. Furthermore, she argued that the laws "protecting" women from unpleasant jobs were actually designed to enable men to monopolize those jobs, and that was unfair to women who were not allowed to try out for those jobs.[35] The amendment passed with the votes of Republicans and Southern Democrats. The final law passed with the votes of Republicans and Northern Democrats. Thus, as Justice William Rehnquist explained in Meritor Savings Bank v. Vinson, "The prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives... the bill quickly passed as amended, and we are left with little legislative history to guide us in interpreting the Act's prohibition against discrimination based on 'sex.'"[36]
Desegregation[edit]
One of the most damaging arguments by the bill's opponents was that once passed, the bill would require forced busing to achieve certain racial quotas in schools.[37] Proponents of the bill, such as Emanuel Celler and Jacob Javits, said that the bill would not authorize such measures. Leading sponsor Senator Hubert Humphrey (D-MN) wrote two amendments specifically designed to outlaw busing.[37] Humphrey said "if the bill were to compel it, it would be a violation [of the Constitution], because it would be handling the matter on the basis of race and we would be transporting children because of race."[37] While Javits said any government official who sought to use the bill for busing purposes "would be making a fool of himself," two years later the Department of Health, Education and Welfare said that Southern school districts would be required to meet mathematical ratios of students by busing.[37]
Political repercussions[edit]
See also: Realigning election
President Johnson speaks to a television camera at the signing of the Civil Rights Act.
The bill divided and engendered a long-term change in the demographic support of both parties. President Johnson realized that supporting this bill would risk losing the South's overwhelming support of the Democratic Party. Both Attorney General Robert Kennedy and Vice President Johnson had pushed for the introduction of the civil rights legislation. Johnson told Kennedy aide Ted Sorensen that "I know the risks are great and we might lose the South, but those sorts of states may be lost anyway."[38] Senator Richard Russell, Jr. later warned President Johnson that his strong support for the civil rights bill "will not only cost you the South, it will cost you the election".[39] Johnson, however, went on to win the 1964 election by one of the biggest landslides in American history. The South, which had five states swing Republican in 1964, became a stronghold of the Republican Party by the 1990s.[40]
Although majorities in both parties voted for the bill, there were notable exceptions. Though he opposed forced segregation,[41] Republican Senator Barry Goldwater of Arizona voted against the bill, remarking, "You can't legislate morality." Goldwater had supported previous attempts to pass civil rights legislation in 1957 and 1960 as well as the 24th Amendment outlawing the poll tax. He stated that the reason for his opposition to the 1964 bill was Title II, which in his opinion violated individual liberty and states' rights. Democrats and Republicans from the Southern states opposed the bill and led an unsuccessful 83-day filibuster, including Senators Albert Gore, Sr. (D-TN) and J. William Fulbright (D-AR), as well as Senator Robert Byrd (D-WV), who personally filibustered for 14 hours straight.
Major features[edit]
(The full text of the Act is available online.)
Title I[edit]
Barred unequal application of voter registration requirements.
Title I did not eliminate literacy tests, which were one of the main methods used to exclude Black voters, other racial minorities, and poor Whites in the South, nor did it address economic retaliation, police repression, or physical violence against nonwhite voters. While the Act did require that voting rules and procedures be applied equally to all races, it did not abolish the concept of voter "qualification", that is to say, it accepted the idea that citizens do not have an automatic right to vote but rather might have to meet some standard beyond citizenship.[42][43] It was the Voting Rights Act, enacted one year later in 1965, that directly addressed and eliminated most voting qualifications beyond citizenship.
Title II[edit]
Outlawed discrimination based on race, color, religion or national origin in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce; exempted private clubs without defining the term "private".[44]
Title III[edit]
Prohibited state and municipal governments from denying access to public facilities on grounds of race, color, religion or national origin.
Title IV[edit]
Encouraged the desegregation of public schools and authorized the U.S. Attorney General to file suits to enforce said act.
Title V[edit]
Expanded the Civil Rights Commission established by the earlier Civil Rights Act of 1957 with additional powers, rules and procedures.
Title VI[edit]
Prevents discrimination by government agencies that receive federal funds. If an agency is found in violation of Title VI, that agency may lose its federal funding.
General
This title declares it to be the policy of the United States that discrimination on the ground of race, color, or national origin shall not occur in connection with programs and activities receiving Federal financial assistance and authorizes and directs the appropriate Federal departments and agencies to take action to carry out this policy. This title is not intended to apply to foreign assistance programs. Section 601 – This section states the general principle that no person in the United States shall be excluded from participation in or otherwise discriminated against on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance.
Section 602 directs each Federal agency administering a program of Federal financial assistance by way of grant, contract, or loan to take action pursuant to rule, regulation, or order of general applicability to effectuate the principle of section 601 in a manner consistent with the achievement of the objectives of the statute authorizing the assistance. In seeking the effect compliance with its requirements imposed under this section, an agency is authorized to terminate or to refuse to grant or to continue assistance under a program to any recipient as to whom there has been an express finding pursuant to a hearing of a failure to comply with the requirements under that program, and it may also employ any other means authorized by law. However, each agency is directed first to seek compliance with its requirements by voluntary means.
Section 603 provides that any agency action taken pursuant to section 602 shall be subject to such judicial review as would be available for similar actions by that agency on other grounds. Where the agency action consists of terminating or refusing to grant or to continue financial assistance because of a finding of a failure of the recipient to comply with the agency's requirements imposed under section 602, and the agency action would not otherwise be subject to judicial review under existing law, judicial review shall nevertheless be available to any person aggrieved as provided in section 10 of the Administrative Procedure Act (5 U.S.C. § 1009). The section also states explicitly that in the latter situation such agency action shall not be deemed committed to unreviewable agency discretion within the meaning of section 10. The purpose of this provision is to obviate the possible argument that although section 603 provides for review in accordance with section 10, section 10 itself has an exception for action "committed to agency discretion," which might otherwise be carried over into section 603. It is not the purpose of this provision of section 603, however, otherwise to alter the scope of judicial review as presently provided in section 10(e) of the Administrative Procedure Act.
Title VII[edit]
See also: US labor law and Employment discrimination law in the US
Title VII of the Act, codified as Subchapter VI of Chapter 21 of title 42 of the United States Code, prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin (see 42 U.S.C. § 2000e-2[45]). Title VII applies to and covers an employer "who has fifteen (15) or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year" as written in the Definitions section under 42 U.S.C. §2000e(b). Title VII also prohibits discrimination against an individual because of his or her association with another individual of a particular race, color, religion, sex, or national origin, such as by an interracial marriage.[46] The EEO Title VII has also been supplemented with legislation prohibiting pregnancy, age, and disability discrimination (See Pregnancy Discrimination Act of 1978, Age Discrimination in Employment Act,[47] Americans with Disabilities Act of 1990).
In very narrowly defined situations, an employer is permitted to discriminate on the basis of a protected trait where the trait is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of that particular business or enterprise. To prove the bona fide occupational qualifications defense, an employer must prove three elements: a direct relationship between the protected trait and the ability to perform the duties of the job, the BFOQ relates to the "essence" or "central mission of the employer's business", and there is no less-restrictive or reasonable alternative (United Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991) 111 S.Ct. 1196). The Bona Fide Occupational Qualification exception is an extremely narrow exception to the general prohibition of discrimination based on protected traits (Dothard v. Rawlinson, 433 U.S. 321 (1977) 97 S.Ct. 2720). An employer or customer's preference for an individual of a particular religion is not sufficient to establish a Bona Fide Occupational Qualification (Equal Employment Opportunity Commission v. Kamehameha School — Bishop Estate, 990 F.2d 458 (9th Cir. 1993)).
Title VII allows for any employer, labor organization, joint labor-management committee, or employment agency to bypass the "unlawful employment practice" for any person involved with the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950.[48]
There are partial and whole exceptions to Title VII for four types of employers:
Federal government; (Comment: The proscriptions against employment discrimination under Title VII are now applicable to certain federal government offices under 42 U.S.C. Section 2000e-16)
Federally recognized Native American tribes
Religious groups performing work connected to the group's activities, including associated education institutions;
Bona fide nonprofit private membership organizations.
The Equal Employment Opportunity Commission (EEOC) as well as certain state fair employment practices agencies (FEPAs) enforce Title VII (see 42 U.S.C. § 2000e-4[45]). The EEOC and state FEPAs investigate, mediate, and may file lawsuits on behalf of employees. Where a state law is contradicted by a federal law, it is overridden.[49] Every state, except Arkansas and Mississippi, maintains a state FEPA (see EEOC and state FEPA directory ). Title VII also provides that an individual can bring a private lawsuit. An individual must file a complaint of discrimination with the EEOC within 180 days of learning of the discrimination or the individual may lose the right to file a lawsuit. Title VII only applies to employers who employ 15 or more employees for 20 or more weeks in the current or preceding calendar year (42 U.S.C. § 2000e(b)).
Precedents and history[edit]
In the early 1980s, the EEOC and some federal courts began holding that sexual harassment is also prohibited under the Act. In 1986, the Supreme Court held in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that sexual harassment is sex discrimination and is prohibited by Title VII. Same-sex sexual harassment has also been held in a unanimous decision written by Justice Scalia to be prohibited by Title VII (Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), 118 S.Ct. 998).
In 2012, the EEOC ruled that employment discrimination on the basis of gender identity or transgender status is prohibited under Title VII. The decision held that discrimination on the basis of gender identity qualified as discrimination on the basis of sex whether the discrimination was due to sex stereotyping, discomfort with the fact of an individual's transition, or discrimination due to a perceived change in the individual's sex.[50][51] In 2014, the EEOC initiated two lawsuits against private companies for discrimination on the basis of gender identity, with additional litigation under consideration.[52] As of November 2014, Commissioner Chai Feldblum is making an active effort to increase awareness of Title VII remedies for individuals discriminated on the basis of sexual orientation or gender identity.[53][54]
On December 15, 2014, under a memorandum issued by Attorney General Eric Holder, the United States Department of Justice (DoJ) took a position that aligned with the EEOC, namely the prohibition of sex discrimination under Title VII encompassed the prohibition of discrimination based on gender identity or transgender status. DoJ had already stopped opposing claims of discrimination brought by federal transgender employees.[55] In October 2017, Attorney General Jeff Sessions issued a directive that withdrew the Holder memorandum.[56] According to a copy of the directive reviewed by BuzzFeed News, Sessions stated that Title VII should be narrowly interpreted to cover discrimination between "men and women". Attorney General Session stated as a matter of law, “Title VII does not prohibit discrimination based on gender identity per se.”[57] Devin O'Malley, speaking on behalf of the DoJ, stated "the last administration abandoned that fundamental principle [that the Department of Justice cannot expand the law beyond what Congress has provided], which necessitated today's action." Sharon McGowan, a lawyer with Lambda Legal who previously served in the Civil Rights division of DoJ, rejected that argument, saying "[T]his memo is not actually a reflection of the law as it is — it's a reflection of what the DOJ wishes the law were" and "The Justice Department is actually getting back in the business of making anti-transgender law in court."[56]
Title VIII[edit]
Required compilation of voter-registration and voting data in geographic areas specified by the Commission on Civil Rights.
Title IX[edit]
Title IX made it easier to move civil rights cases from state courts to federal court. This was of crucial importance to civil rights activists[who?] who contended that they could not get fair trials in state courts.[citation needed]
Title IX of the Civil Rights Act of 1964 should not be confused with Title IX of the Education Amendments Act of 1972, which prohibits sex discrimination in federally funded education programs and activities.
Title X[edit]
Established the Community Relations Service, tasked with assisting in community disputes involving claims of discrimination.
Title XI[edit]
Title XI gives a defendant accused of certain categories of criminal contempt in a matter arising under title II, III, IV, V, VI, or VII of the Act the right to a jury trial. If convicted, the defendant can be fined an amount not to exceed $1,000 or imprisoned for not more than six months.
Continued resistance[edit]
There were white business owners who claimed that Congress did not have the constitutional authority to ban segregation in public accommodations. For example, Moreton Rolleston, the owner of a motel in Atlanta, Georgia, said he should not be forced to serve black travelers, saying, "the fundamental question…is whether or not Congress has the power to take away the liberty of an individual to run his business as he sees fit in the selection and choice of his customers".[58] Rolleston claimed that the Civil Rights Act of 1964 was a breach of the Fourteenth Amendment and also violated the Fifth and Thirteenth Amendments by depriving him of "liberty and property without due process".[58] In Heart of Atlanta Motel v. United States (1964), the Supreme Court held that Congress drew its authority from the Constitution's Commerce Clause, rejecting Rolleston's claims.
Resistance to the public accommodation clause continued for years on the ground, especially in the South.[59] When local college students in Orangeburg, South Carolina attempted to desegregate a bowling alley in 1968, they were violently attacked, leading to rioting and what became known as the "Orangeburg massacre."[60] Resistance by school boards continued into the next decade, with the most significant declines in black-white school segregation only occurring at the end of the 1960s and the start of the 1970s in the aftermath of the Green v. County School Board of New Kent County (1968) court decision.[61]
Amendments[edit]
Between 1965 and 1972, Title VII lacked any strong enforcement provisions. Instead, the Equal Employment Opportunity Commission was authorized only to investigate external claims of discrimination. The EEOC could then refer cases to the Justice Department for litigation if reasonable cause was found. The EEOC documented the nature and magnitude of discriminatory employment practices, the first study of this kind done.
In 1972, Congress passed the Equal Employment Opportunity Act. The Act amended Title VII and gave EEOC authority to initiate its own enforcement litigation. The EEOC now played a major role in guiding judicial interpretations of civil rights legislation. The commission was also permitted for the first time to define "discrimination," a term excluded from the 1964 Act.[62]
Subsequent court rulings[edit]
The Constitutionality of the Civil Rights Act of 1964 was, at the time, in some dispute as it applied to the private sector. In the landmark Civil Rights Cases the United States Supreme Court had ruled, in 1883, that Congress did not have the power to prohibit discrimination in the private sector, thus stripping the Civil Rights Act of 1875 of much of its ability to protect civil rights.[63]
In the late 19th and early 20th century, the legal justification for voiding the Civil Rights Act of 1875 was part of a larger trend by members of the United States Supreme Court to invalidate most government regulations of the private sector, except when dealing with laws designed to protect traditional public morality.
In the 1930s, during the New Deal, the majority of the Supreme Court justices gradually shifted their legal theory to allow for greater government regulation of the private sector under the commerce clause, thus paving the way for the Federal government to enact civil rights laws prohibiting both public and private sector discrimination on the basis of the commerce clause.
After the Civil Rights Act of 1964 was passed, the Supreme Court upheld the law's application to the private sector, on the grounds that Congress has the power to regulate commerce between the States. The landmark case Heart of Atlanta Motel v. United States established the constitutionality of the law, but it did not settle all of the legal questions surrounding the law.
In Phillips v. Martin Marietta Corp., a 1971 Supreme Court case regarding the gender provisions of the Act, the Court ruled that a company could not discriminate against a potential female employee because she had a preschool-age child unless they did the same with potential male employees.[29] A federal court overruled an Ohio state law that barred women from obtaining jobs which required the ability to lift 25 pounds and required women to take lunch breaks when men were not required to.[29] In Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, the United States Supreme Court decided that printing separate job listings for men and women was illegal, which ended that practice among the country's newspapers. The United States Civil Service Commission ended the practice among federal jobs which designated them "women only" or "men only".[29]
In 1974, the Supreme Court also ruled that the San Francisco school district was violating non-English speaking students' rights under the 1964 act by placing them in regular classes rather than providing some sort of accommodation for them.[64]
In 1975, a federal civil rights agency warned a Phoenix, Arizona school that its end-of-year father-son and mother-daughter baseball games were illegal according to the 1964 Civil Rights Act.[29] President Gerald Ford intervened, and the games were allowed to continue.[29]
In 1977, the Supreme Court struck down state minimum height requirements for police officers as violating the Act; women usually could not meet these requirements.[29]
On April 4, 2017, the United States Court of Appeals for the Seventh Circuit in Chicago, sitting en banc, ruled that Title VII of the Act forbids discrimination on the basis of sexual orientation by a vote of 8-3.[65][66] Over the prior month, panels of both the United States Court of Appeals for the Eleventh Circuit in Atlanta and the United States Court of Appeals for the Second Circuit in New York City had reached the opposite conclusion, finding that Title VII sex discrimination does not include claims based on sexual orientation.[67]
Influence[edit]
Despite its lack of influence during its time, the Civil Rights Act of 1964 had considerable impact on later civil rights legislation in the United States. It paved the way for future legislation that was not limited to African American civil rights. The Americans with Disabilities Act of 1990—which has been called "the most important piece of federal legislation since the Civil Rights Act of 1964"—was influenced both by the structure and substance of the previous Civil Rights Act of 1964. The act was arguably of equal importance, and "draws substantially from the structure of that landmark legislation [Civil Rights Act of 1964]". The Americans With Disabilities Act paralleled its landmark predecessor structurally, drawing upon many of the same titles and statutes. For example, "Title I of the ADA, which bans employment discrimination by private employers on the basis of disability, parallels Title VII of the Act". Similarly, Title III of the Americans with Disabilities Act, "which proscribes discrimination on the basis of disability in public accommodations, tracks Title II of the 1964 Act while expanding upon the list of public accommodations covered." The Americans with Disabilities Act extended "the principle of nondiscrimination to people with disabilities",[68] an idea unsought in the United States before the passage of the Civil Rights Act of 1964. The Act also influenced later civil rights legislation, such as the Voting Rights Act of 1965 and the Civil Rights Act of 1968, aiding not only African Americans, but also women.
See also[edit]
US labor law
Civil Rights Movement
Affirmative action in the United States
Bennett Amendment
Bourke B. Hickenlooper
Other civil rights legislation
Civil Rights Act of 1866
Civil Rights Act of 1871
Civil Rights Act of 1875
Civil Rights Act of 1957
Civil Rights Act of 1960
Civil Rights Act of 1968
Civil Rights Act of 1991
Employment Non-Discrimination Act
Equal Pay Act of 1963
Equality Act of 2015
Enforcement Act of 1870
First Enforcement Act of 1871
Second Enforcement Act of 1871
Lodge Bill
Reconstruction Acts
Voting Rights Act of 1965
Court cases
Heart of Atlanta Motel v. United States (1964)
Katzenbach v. McClung (1964)
Griggs v. Duke Power Co. (1971)
Washington v. Davis (1976)
Wards Cove Packing Co. v. Atonio (1989)
Ricci v. DeStefano (2009)
Notes[edit]
Jump up ^ "H.R. 7152. PASSAGE.". GovTrack.us.
Jump up ^ "HR. 7152. PASSAGE.". GovTrack.us.
Jump up ^ "H.R. 7152. CIVIL RIGHTS ACT OF 1964. ADOPTION OF A RESOLUTION (H. RES. 789) PROVIDING FOR HOUSE APPROVAL OF THE BILL AS AMENDED BY THE SENATE.". GovTrack.us.
Jump up ^ Milestones In The History of Equal Employment Opportunity Commission: 1972 Accessed July 1, 2014
Jump up ^ Wright, Susan (2005), The Civil Rights Act of 1964: Landmark Antidiscrimination Legislation, The Rosen Publishing Group, ISBN 1-4042-0455-5
Jump up ^ "Transcript of Civil Rights Act (1964)". Retrieved July 28, 2012.
Jump up ^ "Radio and television address on civil rights, 11 June 1963". John F. Kennedy Presidential Library and Museum. 1963-06-11. Retrieved 2013-11-23.
Jump up ^ "Eyes on the Prize: America's Civil Rights Years, episode 4 "No Easy Walk (1961–1963)"".
Jump up ^ Civil Rights Act Passes in the House ~ Civil Rights Movement Veterans
Jump up ^ Loevy, Robert (1997), The Civil Rights Act of 1964: The Passage of the Law that Ended Racial Segregation, State University of New York Press, p. 171. ISBN 0-7914-3362-5
Jump up ^ Golway, Terry and Krantz, Les (2010), JFK: Day by Day, Running Press, p. 284. ISBN 978-0-7624-3742-9
Jump up ^ Reeves, Richard (1993), President Kennedy: Profile of Power, pp. 628–631
Jump up ^ "Transition to Johnson". UPI.
Jump up ^ "History of The Leadership Conference on Civil and Human Rights & The Leadership Conference Education Fund - The Leadership Conference on Civil and Human Rights".
Jump up ^ Cone, James H. (1991). Martin & Malcolm & America: A Dream or a Nightmare. p. 2. ISBN 0-88344-721-5.
Jump up ^ "A Case History: The 1964 Civil Rights Act". The Dirksen Congressional Center. Retrieved 2016-07-21.
Jump up ^ "The Civil Rights Act: What JFK, LBJ, Martin Luther King and Malcolm X had to say". Los Angeles Times. Retrieved 2016-02-02.
Jump up ^ 1963 Year In Review – Part 1 – Civil Rights Bill United Press International, 1963
Jump up ^ Civil Rights Act – Battle in the Senate ~ Civil Rights Movement Veterans
Jump up ^ Civil Rights Filibuster Ended – United States Senate
Jump up ^ Dallek, Robert (2004), Lyndon B. Johnson: Portrait of a President, p. 169
^ Jump up to: a b c King, Desmond (1995). Separate and Unequal: Black Americans and the US Federal Government. p. 311.
Jump up ^ Jeong, Gyung-Ho; Gary J. Miller; Itai Sened (2009-03-14). Closing The Deal: Negotiating Civil Rights Legislation. 67th Annual Conference of the Midwest Political Science Association. p. 29. Archived from the original on 2016-07-29. Retrieved 2016-07-29.
Jump up ^ EL. "Were Republicans Really..?". Guardian. Retrieved 16 September 2016.
Jump up ^ U.S. House of Representatives. Office of the Clerk of the House. 4/1/1789- (25 September 1964). "Excerpt of the Engrossing Copy of H.R. 7152, the Civil Rights Act of 1964, Showing Amendments" – via US National Archives Research Catalog.
Jump up ^ Freeman, Jo. "How 'Sex' Got Into Title VII: Persistent Opportunism as a Maker of Public Policy," Law and Inequality: A Journal of Theory and Practice, Vol. 9, No. 2, March 1991, pp 163–184. online version
Jump up ^ Rosenberg, Rosalind (2008), Divided Lives: American Women in the Twentieth Century, pp. 187-88
Jump up ^ Gittinger, Ted and Fisher, Allen, LBJ Champions the Civil Rights Act of 1964, Part 2, Prologue Magazine, The National Archives, Summer 2004, Vol. 36, No. 2 ("Certainly Smith hoped that such a divisive issue would torpedo the civil rights bill, if not in the House, then in the Senate.")
^ Jump up to: a b c d e f g Frum, David (2000). How We Got Here: The '70s. pp. 245–246, 249. ISBN 0-465-04195-7.
Jump up ^ The American Presidency Project, additional text.
Jump up ^ Dierenfield, Bruce J (1981). "Conservative Outrage: the Defeat in 1966 of Representative Howard W. Smith of Virginia". Virginia Magazine of History and Biography. 89 (2): 194.
^ Jump up to: a b Gold, Michael Evan. A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for the Issue of Comparable Worth. Faculty Publications — Collective Bargaining, Labor Law, and Labor History. Cornell, 1981 [1]
Jump up ^ Olson, Lynne (2001), Freedom's Daughters: The Unsung Heroines of the Civil Rights Movement, p. 360
Jump up ^ Rosenberg, Rosalind (2008), Divided Lives: American Women in the Twentieth Century, p. 187 notes that Smith had been working for years with two Virginia feminists on the issue.
Jump up ^ Harrison, Cynthia (1989), On Account of Sex: The Politics of Women's Issues, 1945–1968, p. 179
Jump up ^ (477 U.S. 57, 63–64)
^ Jump up to: a b c d Frum, David (2000). How We Got Here: The '70s. pp. 251–252.
Jump up ^ Kotz, Nick (2005), Judgment Days: Lyndon Baines Johnson, Martin Luther King, Jr., and the Laws that Changed America, p. 61.
Jump up ^ Branch, Taylor (1998), Pillar of Fire, p. 187.
Jump up ^ Brownstein, Ronald (May 23, 2009). "For GOP, A Southern Exposure". National Journal. Retrieved July 7, 2010.
Jump up ^ Robert Sherrill (25 May 2001). "Conservatism as Phoenix". The Nation.
Jump up ^ Voting Rights ~ Civil Rights Movement Veterans
Jump up ^ "Major Features of the Civil Rights Act of 1964". CongressLink. The Dirksen Congressional Center. Archived from the original on December 6, 2014. Retrieved March 14, 2010.
Jump up ^ "Civil Rights Act of 1964 Title II". Wake Forest University.
^ Jump up to: a b "Civil Rights Act of 1964 – CRA – Title VII – Equal Employment Opportunities – 42 US Code Chapter 21". finduslaw. Retrieved 2010-06-06.
Jump up ^ Parr v. Woodmen of the World Life Insurance Company, 791 F.2d 888 (11th Cir. 1986).
Jump up ^ "Age Discrimination in Employment Act of 1967". Finduslaw.com. Retrieved 2010-06-06.
Jump up ^ https://www.archives.gov/education/lessons/civil-rights-act/images/act-06.jpg
Jump up ^ U.S. Department of Labor Employment and Training Administration. (1999) "Chapter 2: Laws and Regulations with Implications for Assessments". [2]
Jump up ^ Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012)
Jump up ^ Quinones, Sam (April 25, 2012). "EEOC rules job protections also apply to transgender people". Los Angeles Times. Retrieved November 4, 2014.
Jump up ^ Rosenberg, Mica (September 9, 2014). "U.S. government lawsuits target transgender discrimination in workplace". Reuters. Retrieved November 4, 2014.
Jump up ^ "What You Should Know about EEOC and the Enforcement Protections for LGBT Workers". Equal Employment Opportunity Commission.
Jump up ^ Feldblum, Chai. "ICYMI-- EEOC helping LGBT people get protection from discrimination under sex discrimination laws.".
Jump up ^ Geidner, Chris (18 December 2014). "Justice Department Will Now Support Transgender Discrimination Claims In Litigation". BuzzFeed News. Retrieved 5 October 2017.
^ Jump up to: a b Holden, Dominic (5 October 2017). "Jeff Sessions Just Reversed A Policy That Protects Transgender Workers From Discrimination". BuzzFeed News. Retrieved 5 October 2017.
Jump up ^ Goico, Allison L.; Geller, Hayley (6 October 2017). "US Attorney General Jefferson Sessions Issues New Guidance On Transgender Employees". The National Law Review. Dinsmore & Shohl LLP. Retrieved 15 October 2017.
^ Jump up to: a b Sandoval-Strausz, A.K. (Spring 2005). "Travelers, Strangers, and Jim Crow: Law, Public Accommodations, and Civil Rights in America". Law and History Review. 23 (1): 53–94. JSTOR 30042844. doi:10.1017/s0738248000000055.
Jump up ^ Alan Taylor. "1964: Civil Rights Battles". The Atlantic.
Jump up ^ Wolcott, Victoria W. (16 August 2012). "Race, Riots, and Roller Coasters: The Struggle over Segregated Recreation in America". University of Pennsylvania Press – via Google Books.
Jump up ^ Sean F. Reardon, Ann Owens, "60 Years After Brown: Trends and Consequences of School Segregation" Annual Review of Sociology Vol. 14, 2014
Jump up ^ "Equal Employment Opportunity Commission". LII / Legal Information Institute.
Jump up ^ "The Civil Rights Act of March 1, 1875", www.gmu.edu.
Jump up ^ Frum, David (2000). How We Got Here: The '70s. p. 270.
Jump up ^ Frankel, Alison (5 April 2017). "The shrewdness of Judge Wood’s opinion in LGBT workplace bias case". Reuters. Retrieved 6 April 2017.
Jump up ^ Briscoe, Tony (4 April 2017). "Court: Civil Rights Act covers LGBT workplace bias". Chicago Tribune. Retrieved 6 April 2017.
Jump up ^ Haag, Matthew; Chokshi, Niraj (5 April 2017). "Civil Rights Act Protects Gay Workers, Court Rules". The New York Times. p. A17. Retrieved 6 April 2017.
Jump up ^ Dinerstein, Robert D. (). The Americans with Disabilities Act of 1990: Progeny of the Civil Rights Act of 1964. American Bar Association. JSTOR.
References[edit]
Branch, Taylor (1998), Pillar of Fire: America in the King Years 1963–65, New York: Simon & Schuster.
Brauer, Carl M., "Women Activists, Southern Conservatives, and the Prohibition of Sexual Discrimination in Title VII of the 1964 Civil Rights Act", 49 Journal of Southern History, February 1983.
Burstein, Paul (1985), Discrimination, Jobs and Politics: The Struggle for Equal Employment Opportunity in the United States since the New Deal, Chicago: University of Chicago Press.
Finley, Keith M. (2008), Delaying the Dream: Southern Senators and the Fight Against Civil Rights, 1938–1965, Baton Rouge: LSU Press.
Freeman, Jo. "How 'Sex' Got Into Title VII: Persistent Opportunism as a Maker of Public Policy" Law and Inequality: A Journal of Theory and Practice, Vol. 9, No. 2, March 1991, pp. 163–184. online version
Graham, Hugh (1990), The Civil Rights Era: Origins and Development of National Policy, 1960–1972, New York: Oxford University Press.
Gregory, Raymond F. (2014). The Civil Rights Act and the Battle to End Workplace Discrimination. Lanham, MD: Rowman and Littlefield.
Harrison, Cynthia (1988), On Account of Sex: The Politics of Women's Issues 1945–1968, Berkeley, CA: University of California Press.
Jeong, Gyung-Ho, Gary J. Miller, and Itai Sened, "Closing the Deal: Negotiating Civil Rights Legislation", American Political Science Review, 103 (Nov. 2009)
Loevy, Robert D. (1990), To End All Segregation: The Politics of the Passage of The Civil Rights Act of 1964, Lanham, MD: University Press of America.
Loevy, Robert D. ed. (1997), The Civil Rights Act of 1964: The Passage of the Law That Ended Racial Segregation, Albany, NY: State University of New York Press.
Loevy, Robert D. "A Brief History of the Civil Rights Act OF 1964," in David C. Kozak and Kenneth N. Ciboski, ed., The American Presidency (Chicago: Nelson Hall, 1985), pp. 411–419. online version
Mann, Robert (1996). The Walls of Jericho: Lyndon Johnson, Hubert Humphrey, Richard Russell, and the Struggle for Civil Rights.
Pedriana, Nicholas, and Stryker, Robin. "The Strength of a Weak Agency: Enforcement of Title VII of the 1964 Civil Rights Act and the Expansion of State Capacity, 1965–1971," American Journal of Sociology, Nov 2004, Vol. 110 Issue 3, pp 709–760
Rodriguez, Daniel B. and Weingast, Barry R. "The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation", University of Pennsylvania Law Review, Vol. 151. (2003) online
Rothstein, Mark A., Andria S. Knapp & Lance Liebman (1987). Employment Law: Cases and Materials. Foundation Press.
Warren, Dan R. (2008), If It Takes All Summer: Martin Luther King, the KKK, and States' Rights in St. Augustine, 1964, Tuscaloosa, AL: University of Alabama Press.
Whalen, Charles and Whalen, Barbara (1985), The Longest Debate: A Legislative History of the 1964 Civil Rights Act, Cabin John, MD: Seven Locks Press.
Woods, Randall B. (2006), LBJ: Architect of American Ambition, New York: Free Press, ch 22.
Zimmer, Michael J., Charles A. Sullivan & Richard F. Richards, Cases and Materials on Employment Discrimination, Little, Brown and Company (1982).
External links[edit]
Wikimedia Commons has media related to Civil Rights Act of 1964.
Civil Rights Act of 1964 bill
Major Features of the Civil Rights Act of 1964 and A Case History: The 1964 Civil Rights Act as provided by The Dirksen Center
Text of Civil Rights Act of 1964 – Title VII – 42 US Code Chapter 21 (Employment Discrimination)
Martin Luther King's famous "I Have a Dream" speech, plus background including Civil Rights bill.
1963 March on Washington, civil rights including JFK death date.
Presidency book excerpt, the legislative history of this bill as it became an Act.
Background facts including enactment date.
Directory of EEOC offices, addresses, and hours of operation.
President Lyndon B. Johnson's Radio and Television Remarks Upon Signing the Civil Rights Bill
Civil Rights Movement Veterans
50th Anniversary of the Civil Rights Act of 1964 curated by Michigan State University's Diversity of Excellence through Artistic Expression
Civil Rights Act of 1964, Civil Rights Digital Library
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Separation of duties
From Wikipedia, the free encyclopedia
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Separation of duties (SoD) (also known as "Segregation of duties") is the concept of having more than one person required to complete a task. In business the separation by sharing of more than one individual in one single task is an internal control intended to prevent fraud and error. The concept is alternatively called segregation of duties or, in the political realm, separation of powers. In democracies, the separation of legislation from administration serves a similar purpose. The concept is addressed in technical systems and in information technology equivalently and generally addressed as redundancy.
Contents
[hide]
1 General description
1.1 Principles
1.2 Auxiliary Patterns
2 Application in general business and in accounting
3 Application in information systems
4 References
5 External links
General description[edit]
Separation of duties is a key concept of internal controls. Increased protection from fraud and errors must be balanced with the increased cost/effort required.
In essence, SoD implements an appropriate level of checks and balances upon the activities of individuals. R. A. Botha and J. H. P. Eloff in the IBM Systems Journal describe SoD as follows.
Separation of duty, as a security principle, has as its primary objective the prevention of fraud and errors. This objective is achieved by disseminating the tasks and associated privileges for a specific business process among multiple users. This principle is demonstrated in the traditional example of separation of duty found in the requirement of two signatures on a cheque.[1]
Actual job titles and organizational structure may vary greatly from one organization to another, depending on the size and nature of the business. Accordingly, rank or hierarchy are less important than the skillset and capabilities of the individuals involved. With the concept of SoD, business critical duties can be categorized into four types of functions: authorization, custody, record keeping, and reconciliation. In a perfect system, no one person should handle more than one type of function.
Principles[edit]
Principally several approaches are optionally viable as partially or entirely different paradigms:
sequential separation (two signatures principle)
individual separation (four eyes principle)
spatial separation (separate action in separate locations)
factorial separation (several factors contribute to completion)
Auxiliary Patterns[edit]
A person with multiple functional roles has the opportunity to abuse those powers. The pattern to minimize risk is:
Start with a function that is indispensable, but potentially subject to abuse.
Divide the function into separate steps, each necessary for the function to work or for the power that enables that function to be abused.
Assign each step to a different person or organization.
General categories of functions to be separated:
authorization function
recording function, e.g. preparing source documents or code or performance reports
custody of asset whether directly or indirectly, e.g. receiving checks in mail or implementing source code or database changes.
reconciliation or audit
splitting one security key in two (more) parts between responsible persons
Primarily the individual separation is addressed as the only selection.
Application in general business and in accounting[edit]
The term SoD is already well known in financial accounting systems. Companies in all sizes understand not to combine roles such as receiving cheques (payment on account) and approving write-offs, depositing cash and reconciling bank statements, approving time cards and have custody of pay cheques, etc. SoD is fairly new to most Information Technology (IT) departments, but a high percentage of Sarbanes-Oxley internal audit issues come from IT.[2]
In information systems, segregation of duties helps reduce the potential damage from the actions of one person. IS or end-user department should be organized in a way to achieve adequate separation of duties. According to ISACA's Segregation of Duties Control matrix,[3] some duties should not be combined into one position. This matrix is not an industry standard, just a general guideline suggesting which positions should be separated and which require compensating controls when combined.
Depending on a company's size, functions and designations may vary. When duties cannot be separated, compensating controls should be in place. Compensating controls are internal controls that are intended to reduce the risk of an existing or potential control weakness. If a single person can carry out and conceal errors and/or irregularities in the course of performing their day-to-day activities, they have been assigned SoD incompatible duties. There are several control mechanisms that can help to enforce the segregation of duties:
Audit trails enable IT managers or Auditors to recreate the actual transaction flow from the point of origination to its existence on an updated file. Good audit trails should be enabled to provide information on who initiated the transaction, the time of day and date of entry, the type of entry, what fields of information it contained, and what files it updated.
Reconciliation of applications and an independent verification process is ultimately the responsibility of users, which can be used to increase the level of confidence that an application ran successfully.
Exception reports are handled at supervisory level, backed up by evidence noting that exceptions are handled properly and in timely fashion. A signature of the person who prepares the report is normally required.
Manual or automated system or application transaction logs should be maintained, which record all processed system commands or application transactions.
Supervisory review should be performed through observation and inquiry.
To compensate mistakes or intentional failures by following a prescribed procedure, independent reviews are recommended. Such reviews can help detect errors and irregularities.
Application in information systems[edit]
The accounting profession has invested significantly in separation of duties because of the understood risks accumulated over hundreds of years of accounting practice.
By contrast, many corporations in the United States found that an unexpectedly high proportion of their Sarbanes-Oxley internal control issues came from IT. Separation of duties is commonly used in large IT organizations so that no single person is in a position to introduce fraudulent or malicious code or data without detection. Role based access control is frequently used in IT systems where SoD is required. Strict control of software and data changes will require that the same person or organizations performs only one of the following roles:
Identification of a requirement (or change request); e.g. a business person
Authorization and approval; e.g. an IT governance board or manager
Design and development; e.g. a developer
Review, inspection and approval; e.g. another developer or architect.
Implementation in production; typically a software change or system administrator.
This is not an exhaustive presentation of the software development life cycle, but a list of critical development functions applicable to separation of duties.
To successfully implement separation of duties in information systems a number of concerns need to be addressed:
The process used to ensure a person's authorization rights in the system is in line with his role in the organization.
The authentication method used such as knowledge of a password, possession of an object (key, token) or a biometrical characteristic.
Circumvention of rights in the system can occur through database administration access, user administration access, tools which provide back-door access or supplier installed user accounts. Specific controls such as a review of an activity log may be required to address this specific concern.
References[edit]
Jump up ^ R. A. Botha and J. H. P. Eloff, Separation of Duties for Access Control Enforcement in Workflow Environments
Jump up ^ Kevin Coleman, Separation of Duties and IT Security
Jump up ^ ISACA, Segregation of Duties Control matrix
External links[edit]
Nick Szabo's essay on Separation of Duties
ISACA, Segregation/separation of duties definition
Datamation article dated Jan 18, 2006: Segregate Duties to Lessen Security Risks
Transparency, Partitioning, Separation, Rotation and Supervision of Responsibilities in ISM3
[show]
v
t
e
Separation of powers
Typical branches
Executive
Legislature
Judiciary
Atypical branches
Civil service commission
Auditory
Electoral
Prosecutory
By country
Australia
United Kingdom
United States
Singapore
See also
Fusion of powers
Separation of duties
Judicial independence
Judicial review
Dual mandate
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