50 for 50: Five Decades of the Most Important Discrimination Law Developments: Number 1: Title VII Is Constitutional


In 1926, James “Ollie” McClung opened a barbecue restaurant in Birmingham, Alabama.   It’s hard to imagine that Ollie could have had any idea how famous (or infamous) his restaurant would become.

olliebbqIn 1964, Ollie’s Barbecue, then run by James’s son, Ollie Wade McClung, served white patrons in the restaurant but merely provided a take out service to African-Americans.  After The Civil Rights of 1964 became law, Ollie’s, like many businesses in the South, refused to desegregate.   These businesses claimed that, as a practical matter, their business would suffer immeasurably if they were forced to serve patrons of all races and, as a legal matter, that Congress was attempting to regulate purely local conduct.  After all, Birmingham is smack in the middle of Alabama, not close to the border with any other state.  And, The Civil Rights Act was enacted based on Congressional power to regulate interstate, not local, commerce.

olliebbq2Immediately, Ollie challenged whether the Civil Rights Act was constitutional, claiming that it was not involved in interstate commerce.  And he met with initial success in the District Court of Alabama which agreed with many of the arguments he raised.

This was a major problem for the Government, as most initial efforts at desegregation were focused on the South, especially places deep in the South which, like Ollie’s, served a local clientele.  Nicholas Katzenbach, the Attorney General who earlier as Robert F. Kennedy’s deputy had led the fight on desegregation in schools led the fight along with Archibald Cox, the Solicitor General and also a famed civil rights litigator.  The Supreme Court took review of the case immediately and decided unanimously in Katzenbach v. McClung that the law was constitutional.  It found that although the restaurant served no interstate customers, it engaged in interstate commerce by purchasing supplies from out of state.  But the Court went even further as it found that there was a “conclusive presumption” that interstate commerce was directly or indirectly affected when public establishments discriminated based on race.  The courts later applied that same ruling to Title VII, finding that Congress had the power to prohibit discrimination in employment.

And so ended the first major battle over discrimination laws.  Title VII – indeed all of the Civil Rights Act – was constitutional and could be applied not only to large companies with multistate operations, but also to small, mom-and-pop businesses.

Katzenbach and Cox both had successful careers as lawyers and civil rights crusaders.  In 1999, Ollie’s – long since desegregated – moved to the suburbs and in 2001 it shut its doors for good.


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Hirschfeld Kraemer LLP on:

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