RACE, SEX, AND RULEMAKING: ADMINISTRATIVE CONSTITUTIONALISM AND THE WORKPLACE, 1960 TO THE PRESENT

In 1977, the Associate General Counsel for the Federal Communications Commission ("FCC"), J. Clay Smith Jr., defended his agency's rules requiring broadcasters to ensure "equal employment," a term whose meaning was still being made. Smith argued that the FCC "has the authority and responsibility to consider the provisions of the United States Constitution and the public policies established thereunder." Accordingly, the FCC had ample authority, Smith asserted, to deny licenses to broadcasters with discriminatory hiring practices. In fact, Smith continued, the Fifth Amendment likely 'obligated' the FCC to require equal employment.