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How "Sex" Got Into Title VII:
Persistent Opportunism as a Maker of Public Policy
by Jo Freeman, Ph.D., J.D.
Update: This article is Chapter 12 of Jo's 2004 book We Will Be Heard:Women's Struggles for Political Power in the United States.
Slightly different version published in Law and Inequality: A Journal
of Theory and Practice, Vol. 9, No. 2, March 1991, pp. 163-184.
Introduction
The
Civil Rights Act of 1964 was a milestone of federal legislation. Like
much major legislation it had "incubated" for decades but was
birthed in turmoil. On June 19, 1963, after the civil rights movement
of the fifties and early sixties had focused national attention on racial
injustice, President Kennedy sent a draft omnibus civil rights bill to
the Congress. (Loevy, 1990, Chapters 2 and 3). On Saturday, February 8,
1964, while the bill was being debated on the House floor, Howard W. Smith
of Virginia, Chairman of the Rules Committee and staunch opponent of all
civil rights legislation, rose up and offered a one word amendment to
Title VII, which prohibited employment discrimination. He proposed to
add "sex" to that one title of the bill in order "to prevent
discrimination against another minority group, the women,".... (110
Cong. Rec., February 8, 1964, 2577). This stimulated several hours of
humorous debate, later enshrined as "ladies day in the House",
before the amendment was passed by a teller vote of 168 to 133.
In only a few hours Congress initiated a major innovation in public policy;
one which rippled throughout the country for several years. Prior to its
passage only two states -- Hawaii and Wisconsin -- had laws which prohibited
sex discrimination in employment. Within four years fifteen states and
the District of Columbia did so and within ten years all but a few states
included "sex" among the prohibited discriminations in their
fair employment practices laws (Women's Bureau, 1975, 324-5). Although
the agency created by the Act to enforce Title VII, the Equal Employment
Opportunities Commission, viewed the sex amendment as a "fluke"
that was "conceived out of wedlock", and tried to ignore its
existence (Freeman, 1975, 54), fully one-third of the complaints filed
in the first year charged discrimination on the basis of sex (EEOC, 1971,
30). The EEOC's apathy stimulated the formation of the National Organization
for Women (NOW), whose initial goal was to pressure the agency to enforce
the law. It also provided lawyers for women who wanted to take their sex
discrimination complaints to court (Rawalt, 1980, 454-9). As a consequence
the federal courts voided state protective laws on the grounds that they
were in conflict with the federal prohibition against sex discrimination
(Freeman, 1975, 186-7). These laws, which limited the hours women could
work, the weights they could lift, often prohibited night work and entry
into some occupations considered too dangerous for women, had been actively
sought during the first half of the twentieth century by an earlier generation
of women activists (Lehrer, 1987).
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The popular interpretation of the addition of "sex" to Title VII
is that it was "the result of a deliberate ploy of foes of the bill
to scuttle it" (Whalen, 1985, 238). Even a political scientist as well
read in the Congressional Record as Orfield accepted the interpretation
that "[b]itter opponents of the job discrimination title ... decided
to load up the bill with objectionable features that might split the coalition
supporting it" (Orfield, 1975, 299). This view, appealing though it
seems, ignores several factors apparent to anyone who has tried to influence
a Congressional vote: 1) The potential beneficiaries of the amendment --
women -- had experienced lobbyists on the Hill and were not uninterested
in the bill. 2) Southerners had conceded defeat and gone home by Wednesday
(Whalen, 1985, 110-111); the vote occurred on a Saturday -- which is not
Members' favorite day to be in Washington. 3) The number of members voting
on the amendment --301 -- was larger than any other counted vote that day
(the others ranged from 178 to 240). 4) Other amendments which might "clutter
up" the bill, including "sex" amendments to other titles,
were voted down.
Before offering an alternative explanation which takes these factors into
account it is necessary to place the "sex" amendment into historical
context. This will clarify the fact that while the prohibition of employment
discrimination on the basis of sex was not a widely debated, thoroughly
researched policy proposal, neither was it an "accidental breakthrough"
(Orfield, 1975, 299).
The National Woman's Party and the Equal Rights Amendment
The National Woman's Party had been lobbying for the Equal Rights Amendment
since it was first introduced into Congress in 1923. The NWP was originally
founded by the militant branch of the Suffrage Movement in 1916. Once the
Nineteenth Amendment was ratified, the NWP, under the leadership of Alice
Paul, reorganized itself to focus attention on the eradication of legal
discrimination against women through another Congressional amendment (Lemons,
1973, 49). Concentrated in Washington and funded more by legacies and wealthy
benefactors than a large membership, the NWP found this strategy suitable
to its particular strengths as well as its feminist ideology. The ERA was
strongly opposed by the newly created Women's Bureau in the Department of
Labor and virtually every other women's organization, particularly the League
of Women Voters, the National Consumer's League, and the Women's Trade Union
League. Their opposition was based on the one fact about the ERA on which
everyone could agree; that it would abolish protective labor legislation
for women.
The National Woman's Party and the Women's Bureau coalition (Harrison, 1982,
1988, 8) fought each other to a standstill throughout the 1920s and 1930s.
But by the 1940s, the NWP was gaining the upper hand. House and Senate subcommittees
were reporting it favorably, the Republican Party endorsed the ERA in its
1940 platform, and the Democratic Party followed suit in 1944. The Senate
voted on the ERA for the first time on July 19, 1946, after three days of
debate. Although the tally of 38 to 35 was well below the two-thirds required
for a Constitutional amendment (92 Cong. Rec. July 19, 1946, 9405; Pardo,
1972, 127-133), expectations of favorable action in the next Congress were
high because "there has been a subtle change in the public attitude
toward (the ERA)". During World War II, state protective labor laws
were waived by State legislatures and labor boards in order that women could
work in the war industries while "WACs, WAVEs, SPARs and women Marines
took over strenuous jobs, some of them on front-line assignments" (25
Congressional Digest, December 1946, 290).
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The Women's Bureau coalition decided to change tactics from mere opposition
to a "more positive" approach. It had always agreed with the NWP
that women faced discrimination in the job market, particularly in pay,
but had argued that this and the discriminatory laws which truly hurt women
were better dealt with through "specific bills for specific ills"
rather than the broad sweep of a Constitutional amendment. In its new incarnation
as the National Committee to Defeat the UnEqual Rights Amendment (NCDUERA),
it proposed an Equal Pay Act. The idea of equal pay for equal work had been
around since at least 1868 (Women's Bureau, 1966). Two states had passed
equal pay laws; but until 1945 there was no attempt to pass such a law on
the federal level. Even with the backing of the NCDUERA, a federal equal
pay act was not successful, either as an anti-ERA measure or in its own
right, due to fears that it would encourage women to stay in the work force
and take jobs away from returning soldiers (Harrison, 1988, 39).
Their next tactic, by the renamed National Committee on the Status of Women,
was to propose a "Status Bill" which declared that the policy
of the United States to be that "in law and its administration no distinctions
on the basis of sex shall be made except such as are reasonably based on
differences in physical structure, biological or social function."
Instead of enforcement provisions, it would create a Commission on the Legal
Status of Women to study sex discrimination (Harrison, 1988, 26-29).
In January 1950, the ERA was debated on the Senate floor once again. When
the Status bill was overwhelmingly rejected by 19 to 65, Sen. Carl Hayden
(D. Ariz.) proposed an amendment to the ERA which read "The provisions
of this article shall not be construed to impair any rights, benefits, or
exemptions now or hereafter conferred by law upon persons of the female
sex." ERA proponents were caught by surprise, and many Senators, whose
support for the ERA had been on the record but never very strong, took advantage
of the opportunity to vote for both the rider and the Amendment. The Hayden
rider passed 51 to 31 and the ERA, thus vitiated, passed 63 to 19 (96 Cong.
Rec., Jan 25, 1950, 872-3; 1950 Congressional Quarterly Almanac 539). This
strategy was repeated when the ERA once again came to the Senate floor in
July of 1953. This time the rider passed by 58 to 25 and the ERA by 73 to
11 (99 Cong. Rec. July 16, 1953, 8954-5; 1953 Congressional Quarterly Almanac
386).
The ERA never had a chance in the House. Emanuel Celler (D. NY) had been
Chair of the Judiciary Committee since 1949. He was a crusty liberal from
Brooklyn who shared organized labor's antipathy to the ERA. No hearings
were held on the ERA during his chairmanship until 1971 -- after a successful
discharge petition by Martha Griffiths in 1970. Between Celler in the House
and Hayden in the Senate, opponents of the ERA successfully bottled it up.
The NWP continued to walk the halls of Congress every year and faithfully
collect endorsements from members of both houses well above the two-thirds
needed for passage. But there was no serious interest in the amendment apart
from the NWP and the few other women's organizations who had endorsed it
in the preceding decades. Even these could do little more than pass resolutions.
The NWP was a small, exclusive organization, whose ageing members refused
to relinquish leadership of the struggle to anyone else -- even when it
could no longer publish its journal Equal Rights (Rupp and Taylor, 1987,
74-5). Consequently, it could still get the ERA introduced into Congress,
but it could not get it out.
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In 1961 President Kennedy appointed Esther Peterson as Assistant Secretary
of Labor and Director of the Women's Bureau. Two of the most important items
on her agenda were passage of the Equal Pay Act and derailment of the ERA.
To accomplish the first she organized a concerted lobbying campaign which
drew upon the expertise and contacts Peterson had developed as a lobbyist
for the AFL-CIO. The campaign took two years of solid work, during which
there were three sets of hearings: two in the House and one in the Senate.
Although the final bill was narrower than Peterson and Equal Pay advocates
had wanted, and only covered 61 percent of the female labor force, by the
time it was signed into law by President Kennedy on June 10, 1963, both
Houses had heard ample testimony on the problems faced by women in the labor
force (Harrison, 1988, 89-105).
One of Peterson's first recommendations to the new President was the creation
of a national commission on women -- a component of the 1947 Status Bill
-- which she argued would end "the present troublesome and futile agitation
over the ERA," (East, 1982, 7; Murray, 1987, 348-9), but which she
also hoped would provide an alternative program of action to improve women's
status (Peterson, 1983, 288; Harrison 1982, 378). To avoid the NWP lobbyists,
the President's Commission on the Status of Women was created by Executive
Order 10980 on December 14, 1961. Eleanor Roosevelt was named the chair
and among the members was only one ERA supporter. This was Marguerite Rawalt,
a lawyer with the IRS and a former President of the National Federation
of Business and Professional Women (BPW). The final report and recommendations
of the Commission, American Women, were issued amid much publicity on October
11, 1963, with recommendations in the areas of education, social security,
child care, public and private employment, and protective labor legislation.
It quickly became something of a Government Printing Office best seller.
Over 83,000 copies were distributed within a year, and a private publisher
put out a commercial version with an Epilogue by Margaret Mead.
Fair Employment Practices Proposals
The roots of Title VII can be traced to the Unemployment Relief Act of 1933,
which provided "[t]hat in employing citizens for the purpose of this
Act no discrimination shall be made on account of race, color, or creed,"
(48 Stat. 22). Most laws passed in the New Deal affecting employment contained
similar provisions, or they were "read into" the Acts by Executive
regulations. However, these were little more than statements of good intentions,
as there were no enforcement mechanisms. Their ineffectiveness was highlighted
by the systematic exclusion of blacks from the new jobs created by the mushrooming
defense industries prior to World War II. Even before the United States
entered the War, black leaders pressed President Roosevelt to sign an Executive
Order with teeth in it that would ban discrimination in these industries.
Faced with a threatened March on Washington, Roosevelt did so on June 25,
1941. Executive Order 8802 established the Fair Employment Practices Committee
with the modest powers to investigate complaints of discrimination and take
"appropriate steps" (6 Fed. Reg. 1941, 3109). Although its authority
was extended to all federal contractors in 1943, its enforcement power was
limited to negotiation and moral suasion. It expired in June 1946. (Burstein,
1985, 8; Equal Employment Opportunity Commission, n.d., 1-3).
Presidents Truman, Eisenhower and Kennedy each established FEP committees
by Executive Order, though under different names and with different foci.
The Kennedy Committee on Equal Employment Opportunity differed from its
predecessors in that it required affirmative action to eliminate discrimination
and had the power to terminate the contracts of noncomplying employers as
well as to recommend suits to the Justice Department. Its scope was broadened
to include virtually all programs and businesses receiving federal money.
Nonetheless the "most effective method of achieving compliance ...
was ... cooperation." (Nathan, 1969, 87-9; EEOC, 4-5, referring to
E.O.s 10308, 10479, 10925, 11114).
The first FEP bill was introduced in 1942. Over the next twenty years, many
more were introduced into every Congress, but only three ever reached the
floor; the rest were bottled up in committee. The Senate debated FEP bills
in 1946 and 1950 but they were filibustered to death when proponents could
not muster the necessary two-thirds vote for cloture. These were also the
first two years in which the ERA was debated on the floor of the Senate,
which may explain why provisions to prohibit sex discrimination in employment
were proposed to the House those same two years. Early in 1946 Rep. Clare
E. Hoffman (R. Mich.) introduced H.R. 5216, which included sex, ancestry
and union membership as protected classes. It was committed to the Labor
Committee where it died. (92 Cong. Rec., Jan. 23 1946, 313). On February
22, 1950, Rep. Dwight L. Rogers (D. Fla.) offered a floor amendment to add
"sex" to the FEP bill then being debated "so the women of
the country will have equal rights with men". No one spoke against
it and it passed by a voice vote. (96 Cong. Rec., Feb. 22, 1950, 2247).
Although the amended bill passed the House by 240 to 177 the following day,
it was a substitute for a stronger bill introduced by Rep. Adam Clayton
Powell Jr. (D. NY) after an all night session. Sponsored by Samuel K. McConnell
Jr. (R. Pa.), it would have set up an FEP Commission with the power only
to study and recommend, not to compel. Nonetheless, this was still the first
time either house of Congress voted to equate race and sex discrimination
(EEOC, 7-8).
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Such
an equation was standard policy for the NWP. Its conservative members were
not pro-civil rights. Most would have preferred no government regulation
of employment. But the aging organization did not wish to see any group
given rights not also given equally to women, and had no compunctions about
taking advantage of any opportunity that came along to advance its cause.
(Rupp and Taylor, 1987, 153-165) Throughout the fifties it lobbied to have
sex discrimination included in the jurisdiction of the President's Committee
on Government Contracts (Eisenhower's FEPC), but it was turned down on the
grounds that the addition would make enforcement difficult. (Rupp and Taylor,
1987, 176; Pardo, 1979, 161-2). It was more successful in 1956, albeit temporarily,
in persuading the House to include sex discrimination in the jurisdiction
of the proposed Civil Rights Commission. Once again the mechanism was a
floor amendment -- made by Rep. Gordon McDonough (R. Cal.) at the request
of his campaign chair, Mary Sinclair Crawford, a Dean at the University
of Southern California and active NWP member. When his wife expressed opposition,
NWP representative Amelia Walker asked Rep. Howard W. Smith (D. Va). to
introduce it instead. (Letter of July 20, 1956 from NWP Congressional Chairman
Alice Paul to Mary Sinclair Crawford; Reel 102, NWP papers). Smith consented,
but McDonough announced his intentions to the House as soon as debate began
on July 17, 1956. Smith voiced his approval, stating that "if this
iniquitous piece of legislation is to be adopted, we certainly ought to
try to do whatever good with it that we can" (102 Cong. Rec., July
17, 1956, 13124-5).
McDonough was pressured by NAACP lobbyist Clarence Mitchell to change his
mind. When he refused, the opposition organized. No sooner did the clerk
read the one-word amendment two days later, than Rep. Celler (D. NY) tried
to turn the issue into an ERA debate. Although the proposed Commission's
sole authority was to investigate, "sex" was not germane, he said,
because "distinctions based on sex have never been considered within
the purview of (the) prohibition(s of) ... the 14th amendment." Four
Democratic Congresswomen agreed that adding "sex" would "destroy
the real purpose of this bill and will lead to its defeat." Nonetheless,
after eloquent pleas by McDonough, Rep. Katherine St. George (R. NY), chief
House sponsor of the ERA, and Rep. Howard W. Smith (D. Va.), the House voted
in favor by 115 to 83. (Paul oral history, 1972, 617-8; 102 Cong. Rec. July
19, 1956, 13552-7). The bill was passed by the House but by prior arrangement
among the leadership was sent to the Senate too late to become law (68 Time,
July 30, 1956, 9). It was reintroduced and passed in the next Congress as
part of the 1957 Civil Rights Act --without the sex amendment. The NWP thought
the debate over the McDonough amendment was "a great help to our cause"
but the request was not renewed.
Title VII
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Although no one really took seriously the NWP's efforts to equate sex and
race discrimination, ERA opponents were of two minds. They acknowledged
that women experienced discrimination in employment and argued that specific
anti-discrimination measures would be preferable to the ERA. In written
testimony to the 1956 Democratic and Republican Platform Committees, Walter
Reuther, President of the CIO, supported the addition of sex (and age) to
the discriminations prohibited by government contractors (NWP papers, Reel
103). But opponents also believed, as the President's Commission on the
Status of Women concluded in 1963, that "discrimination based on sex...involved
problems sufficiently different from discrimination based on other factors
listed to make separate treatment preferable" (Mead and Kaplan, 1965,
49).
The nature of separate treatment was not defined, nor was it to define itself
over time. Even before the Commission's report was released the NWP was
lobbying to have "sex" added to the latest Civil Rights Act. It
was alerted to this possibility on July 9, 1963, when President Kennedy,
at the recommendation of Esther Peterson, called together over 300 representatives
of women's organizations to "discuss those aspects of the nation's
civil rights program in which women and women's organizations can play a
special role." (Peterson oral history, 1983, 300.) The NWP was included
among those invited, but NWP President Emma Guffy Miller sent Nina Horton
Avery in her place. She cornered Kennedy as he left to ask him to meet with
the NWP to discuss the ERA, then departed herself. Avery reported that the
word "sex" did not appear in the bill so there was no reason to
stay. The NWP did not participate in the National Women's Committee on Civil
Rights that was organized that evening. (Telegram of July 1, 1963 from John
F. Kennedy to Emma Guffy Miller; letter of July 13, 1963 from Nina Horton
Avery to Emma Guffy Miller; "Report to Membership" by Nina Horton
Avery; Reel 108, NWP papers.)
During the next few months both the Civil Rights bill and the nation experienced
several dramatic and emotional shocks. Civil rights supporters marched on
Washington on August 28, 1963, where they heard Dr. Martin Luther King,
Jr. give his famous "I have a dream" speech. Afterwards President
Kennedy met with march leaders to discourage them from trying to strengthen
Title VII and other portions of the bill because doing so would kill necessary
Republican support. Two weeks later several children were killed when a
black church was bombed in Birmingham, Alabama. Liberal Democrats responded
by strengthening the Civil Rights bill, which was then in the subcommittee
of the House Judiciary Committee. A major change was made in Kennedy's weak
employment measure which only covered government contractors and relied
on persuasion rather than force of law. The new Title VII created an Equal
Employment Opportunity Commission which had the power to investigate and,
after a hearing, order violators to "cease and desist." Its scope
was broadened to include all employers with over 25 employees. The Republicans,
who thought they had a deal worked out with the Justice Department, felt
betrayed and it took all of Kennedy's and Judiciary Committee Chair Emanuel
Celler's political skills to hammer out a compromise. The EEOC survived,
but its "cease and desist" powers did not; it was left with only
the power to investigate and conciliate. The bill was sent to the Rules
Committee the day before Kennedy was assassinated (Loevy, 1990, 62-75; Whalen,
1985, 27-28, 34-35, 59).
As a result of Kennedy's death, passage of a Civil Rights bill became a
priority with Congress and the new Administration. This emphasis was fully
backed by public opinion. A December Newsweek poll showed that 62 percent
of the people supported civil rights, and a National Opinion Research Center
survey showed 83 percent in favor of equal employment opportunity. The momentum
thwarted the plans of Representative Smith (D. Va.) to use his power as
chair of the House Rules Committee to stop or at least delay the Civil Rights
bill. Instead he subjected "this nefarious bill" to ten days of
intense scrutiny through hearings in January 1964. It was during these hearings
that the idea of adding "sex" to the prohibited discriminations
was publicly proposed by Smith and other members of the Rules Committee.
Although Alice Paul considered such actions to be "sideshows"
to the ERA, the NWP had been soliciting support for it for several weeks,
and its National Council had passed a formal resolution on December 16,
1963, asking that the Civil Rights bill be amended. The prospects did not
look good. None of the national women's organizations would help and Rep.
Catherine May (R. Wa.) could not find one among the 40 Congressional allies
she queried who would support a sex amendment. (Newsweek poll and Smith
quote in Whalen, 1985, 91-92. NORC Survey 330 cited in Burstein, 1985, 46.
Zelman, 1980, 60-61. House of Representatives, Committee on Rules, Hearings
on H.R. 7152, 88th Cong. 2d Sess., Jan 9-29, 1964, 125, 366, 558. Loevy,
1990, 96-100. Paul oral history, 1972, 615, 622, 624. The resolution is
on Reel 108, NWP papers. Portions are cited by Berger, 1971, 332, Brauer,
1983, 43, and Rupp and Taylor, 1987, 176. Reel 108 also contains a four
page, single-spaced, unsigned report on "c.r. bill progress" apparently
written in late February 1964. The author was probably Caruthers Berger,
who was an attorney in the Labor Department and a member of the National
Council of the NWP.)
After numerous requests the NWP finally received assurances from Reps. Howard
W. Smith (D. Va.), Katherine St. George (R. NY), and Martha Griffiths (D.
Mich.), that they would introduce an amendment on the floor. Although both
St. George and Smith argued that as opponents of the bill any amendment
they introduced would be suspect, Griffiths felt that Smith's sponsorship
would insure at least a hundred Southern votes (Bird, 1968, 7). The three
Representatives agreed that Smith would do the honors, and the others would
back him up. They decided to concentrate their efforts on Title VII. The
NWP also asked St. George and Julia Hansen (D, Wash.) to introduce a "sex"
amendment before asking Smith but were turned down. St. George said she
opposed the entire bill (though she voted for it in the end) and Hansen
would not violate an agreement among the Democratic leadership that there
be no amendments. Only Griffiths was enthusiastic about a "sex"
amendment. ("c.r. bill progress", p. 2.) Fifteen years later Catherine
May told Fern Ingersoll that "Edith Green and I talked with Howard
Smith -- as did other women members of the House, Martha Griffiths -- and
asked for sex in the Civil Rights Bill. He accepted it." (May [Bedell]
oral history, 1979, 144. Green was the only Congresswoman to speak against
adding "sex" to Title VII. See also Paul oral history, 1972, 623-25 which credits Smith for limiting attempts to add a "sex"
amendment solely to Title VII even though the NWP would have preferred a
general amendment to all of the Titles.)
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On
January 9, as the hearings on H.R. 7152 began, Rep. Smith and Rep. Celler
exchanged their views:
Smith:
I have just had a letter this morning, which I was going to bring
to your attention later, from the National Woman's Party. They want
to know why you did not include sex in this bill? Why did you not?
Celler:
Do you want to put it in Mr. Chairman?
Smith:
I think I will offer an amendment. The National Woman's Party were
(sic) serious about it.
(Hearings, 1964, 125).
On January 21, Rep. Colmer (D. Miss.) brought the issue up again. "One
more thing", he said, "and I do this by request more or less....
There is nothing in here about sex, is there, although we got quite
a bit of publicity a while back because that question was raised. There
is no provision in here about the discrimination against women because
of their sex in all this consideration, is there.?" (Hearings,
1964, 366). On January 26, Rep. Smith appeared on "Meet the Press",
where May Craig, White House reporter for the Portland, Maine Press
Herald and an NWP member, asked him if he would put equal rights for
women in Title VII from the floor. "I might do that", he said.
(Bird, 1968, 3-4). On January 30, before the Rules Committee voted to
send the Civil Rights bill to the House floor by 11 to 4, one Member
moved that the Rules Committee give specific clearance to an amendment
to bar discrimination on the basis of sex. This was voted down by 8
to 7. (1964 CQ Almanac, 344). Two days later, at President Johnson's
weekly press conference, a reporter asked if the President would support
a ban on sex discrimination in the civil rights bill. Johnson, who had
recently been campaigning for more women in government, gave a noncommittal
answer. (CQ Weekly Report, Feb. 7, 1964, 281. Zelman, 1982, Chap. 3).
Although the three Representatives no doubt solicited support from other
members of Congress, not all were working with them. On the fifth and
sixth days of debate Rep. John Dowdy (D. Tex). offered his own amendments
to add "sex" to Titles II, III, IV and V of the bill. A staunch
opponent of civil rights who no doubt knew of Smith's plans from the
Rules Committee hearings, he had not been recruited by the NWP. All
of his amendments were overwhelmingly defeated, as were all but 34 of
the 124 floor amendments made to the Civil Rights bill (Whalen, 1985,
123). The House leadership of the Civil Rights bill, Republican Bill
McCulloch (Ohio) and Democrat Emanuel Celler (NY), had agreed with opponents
that debate on the bill and floor amendments would not be cut off. But
they had agreed between themselves "that if a proposed amendment
did no violence to the bill or to the principles which underlay it,
they would be flexible to preserve harmony.... However, if substantive
changes were sought, they would be intractable" (Whalen, 1985,
110). Although one could argue that increasing the scope of the bill
did it no violence, it was this agreement that House members approached
by Catherine May and others were unwilling to violate. (Paul oral history,
1972, 625. Brauer, 1983, 46, 48. 110 Cong. Rec., February 5-6, 1964,
1978-9, 2280-1, 2264-5, 2297.)
But violate it many did. On Saturday, February 8, 1964, Rep. Smith moved
to add "sex" to Title VII. Unlike his 1956 speech, this time
he played it for laughs, setting a mocking and jocular tone which led
to the two hour debate being dubbed "Ladies Day" in the House.
Celler reacted as usual and denounced the amendment as an "entering
wedge" for the ERA. Five Congresswomen spoke in its favor, including
Edna Kelly (D. NY), who had opposed the 1956 amendment. Martha Griffiths
said that "if there had been any necessity to have pointed out
that women were a second-class sex, the laughter would have proved it."
But the women were not a united front. The administration had tried
to talk Griffiths out of supporting the amendment without success, but
they did persuade Edith Green (D. Ore.) to speak against it. After denouncing
discrimination based on sex, she went on to say that racial discrimination
caused far more suffering, and a bill aimed at helping Negroes should
not be cluttered up. She read a letter from the AAUW opposing the "sex"
amendment. The bill's leaders had also obtained a letter from the Labor
Department, which quoted Esther Peterson quoting the President's Commission
on the disadvantages of treating sex discrimination like race. Their
efforts were insufficient. The House approved the amendment by 168 to
133. (Whalen, 1985, 117-119. EEOC, 3213-3228. 110 Cong. Rec., February
8, 1964, 2577-84. Zelman, 1980, 64-67. Brauer, 1983, 48-51. Rupp and
Taylor, 1987, 177-78. Harrison, 1988, 177-79. New York Times, February
9, 1964, 1:1).
The fact that Smith played the "sex" amendment for laughs
and that all the men who spoke for it were from Southern or border states
and voted against the final bill, lent credence to the view that it
was merely a ploy by opponents. But if that were the only -- or even
the primary -- motive, the Title VII amendment would have met the same
fate as the Dowdy "sex" amendments to the other Titles, or
at least some of the other attempts to "clutter up" Title
VII should have passed that same day. The two Dowdy "sex"
amendments on which there were counted votes earlier in the week --
to Titles II and III -- were rejected by 43 to 115 and 26 to 112 (110
Cong. Rec., February 5-6, 1964, 1978-9, 2280-1, 2264-5, 2297). Shortly
after "sex" was added to Title VII by 168 to 133, Dowdy moved
to add "age" to the prohibited discriminations. Despite a
very serious debate, in which Smith was for and Celler against, this
amendment was rejected by 94 to 123 (110 Cong. Rec., February 8, 1964,
2596-99). A motion to strike all of Title VII lost by 90 to 150 (110
Cong. Rec., February 8, 1964, 2599-2607). Nineteen amendments were offered
that day, and fourteen adopted (most of them technical ones by the bill's
sponsor, Celler). The bill's managers clearly had between 112 and 133
Representatives who could be counted on to be present and vote down
any amendment when asked. Equally clearly there were several dozen Representatives
who came to the floor on a Saturday morning to vote to add "sex"
to Title VII, who weren't available, or requested, to vote on any of
the other amendments. The vote on the "sex" amendment was
the largest counted vote that day. The overall voting pattern implies
that there was a large group of Congressmen (in addition to the Congresswomen)
who were serious about adding "sex" to Title VII, but only
to Title VII. It is not consistent with an interpretation that the addition
of "sex" was part of a plot to scuttle the bill.
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Furthermore, if the bill's managers had perceived the "sex" amendment
as a serious threat to Title VII, they had ample opportunity to scuttle
it two days later when the entire Civil Rights bill was up for review before
the final vote. At that time Rep. Robert Griffin (R. Mich.) tried to amend
the amendment to make it applicable only to those who certified that a spouse,
if any, was unemployed "when the alleged unlawful employment practice
occurred." This was defeated 15 to 96 (110 Cong. Rec., February 10,
1964, 2728). Four of the 28 amendments to Title VII that were offered that
day were adopted (EEOC, n.d. Appendix 2 and 3), including one proposed by
Rep. Frances Bolton (D., Ohio) making "sex" subject to the bona
fide occupational qualification exception (110 Cong. Rec, February 10, 1964,
2718-21). A motion for a roll call vote on the "sex" amendment
was defeated, but there was a separate voice vote on "sex" right
before the final roll call on February 10 which affirmed its addition (110
Cong. Rec., February 10, 1964, 2804). That final roll call registered 290
to 130 in favor of the Civil Rights Act. If those who voiced their approval
the "sex" amendment has been mostly opponents of the Act, it would
have been removed at that time.
After the bill went to the Senate, the National Federation of Business and
Professional Women, with 150,000 members and chapters in every state, joined
the campaign. Marguerite Rawalt "wrote women lawyers and BPW and Zonta
members across the country, explaining the bill and Title VII, telling them
whom to write, what to say." She also asked black attorney Pauli Murray
to draft a supportive memorandum since Murray "could act freely, being
outside the government, and could also present an argument as a victim of
both race and sex discrimination." As a result, Texas BPW members wrote
President Johnson asking his support, Illinois BPW members deluged Senate
Minority Leader Everett Dirksen with telegrams, and Murray's memo was reproduced
and distributed to the President, Vice President, Attorney General and key
Senators (Patterson, 1986 154. Murray, 1987, 356-7. Zelman, 1980, 70. Bird,
1968, 13. Rawalt oral history, 1980, 365, 396).
The Johnson administration did not urge that the "sex" amendment
be dropped by the Senate. Indeed after the bill went to the Senate "sex"
was added in other places to make the language consistent throughout. President
Johnson stated that he supported it "in its present form" and
Democratic leaders said they opposed removing "sex." When Senator
Dirksen (R. Ill.), whose support was necessary for Senate passage, said
he wanted to remove the amendment, Sen. Margaret Chase Smith (R. Me.), at
the urging of the NWP, persuaded the Republican Conference to vote against
him. He finally gave up, "in order to avoid the wrath of the women."
(Zelman, 1980, 70-1. Brauer, 1983, 52-55. Murray, 1987, 357-8. 110 Cong.
Rec., March 26, 1964, 6239. Anita Politzer to Margaret Chase Smith, April
2, 1964; Smith to Politzer, April 9; E. G. Miller to Mary Kennedy, April
15, 1964; Alice Paul to Mary Kennedy, undated draft quoting the Baltimore
Sun of May 25, 1964; reel 109, NWP papers. Dirksen was an ERA supporter.
Indeed, Alice Paul wrote Marjorie Longwell on August 4, 1956 praising his
"uncompromising support" while a member of the Senate Judiciary
Committee; Reel 103, NWP papers.)
Who Done It?
Both the NWP and Martha Griffiths claimed sole credit for the addition of
"sex" to Title VII (though the NWP did give some to the Republican
Congresswomen). Both no doubt deserve credit, but even more credit should
go to the fortuitous circumstances leading up to that fateful day. The most
important of these was the civil rights movement, without which there wouldn't
have been a Civil Rights Act. Given the amount of time necessary to pass
the relatively innocuous Equal Pay Act, and the compromises involved, it
is highly improbable that an Act prohibiting employment discrimination by
sex alone would ever have passed Congress, let alone one creating a federal
enforcement agency.
Nor was this vote taken in isolation, despite the claim by opponents that
the "sex" amendment was hasty and ill-considered. Testimony about
employment discrimination dominated the hearings held on the Equal Pay Act
in a House Committee in March of 1962 and 1963, and in a Senate Committee
in April of 1963. In mid-October, the Report of the President's Commission
had been released to great publicity. And President Johnson had made several
public statements in January of 1964 about his intentions to bring more
women into government. The lobbying efforts of the NWP were weak compared
to those of the civil rights forces, but they weren't non-existent. The
NWP solicited help from other women's organizations and sent letters to
many Members of Congress. A member of BPW from Texas walked into the NWP
headquarters to volunteer full time just when its campaign began. She distributed
pamphlets prepared by an NWP attorney from statistics collected by the Women's
Bureau on such topics as "The Discriminations Against Women Workers
are Greater Than Those Against Negro and Non-White Men." (Berger, 1971,
333. Zelman, 1980, 45-47, 61, 138n17. Paul oral history, 1972, 622, 626-7.
Copies of letters to Members of Congress, the NWP pamphlets and an untitled
report of Hettie Milam Cook on H.R. 7152, are in the NWP papers, Reel 108.
Berger wrote the NWP arguments, but could not be public about her participation
because she worked for the Labor Department. Alice Paul, 1972, 628, credits
her for working every night without being specific about what she did. Berger
was more open about her role with Rupp Taylor, in a 1982 interview, Rupp
and Taylor, 1987, 177-8, 251n79.)
The other experienced lobbyist was Esther Peterson. While she officially
opposed the "sex" amendment and supplied material for the House
floor debate, there's no evidence that she mobilized her considerable resources
against it in the Senate, even though there was adequate time to do so.
Indeed, in April, Petersen drafted President Johnson's answer to a letter
from Texas BPW inquiring about his stand on the "sex" provision,
which expressed support for "equal opportunity for women" and
the "present form" of the bill (quoted in Zelman, 1980, 71, 140n53).
While the initiative for adding "sex" to Title VII clearly lies
with the NWP, the more important questions are who voted for it, and why.
This would be simpler if there had been a roll call vote. However, there
was only a teller vote. Individuals on either side passed through two tellers
who counted them but did not record names. Even if all the Congresswomen,
except Edith Green, voted for the "sex" amendment, that would
account for only ten votes out of 168. The Southerners might have wished
to undermine the Civil Rights bill, but many of them had concluded that
passage was inevitable and gone home. Only 86 Southern Democrats were present
to vote against the Civil Rights Act on Monday, February 10 (Whalen, 1985,
111-112, 122); it's unlikely that more than that were present to vote for
"sex" on February 8. Who were the Members who came to the floor
to support "sex" on Saturday and came back on Monday to support
the entire Civil Rights Act?
The only evidence on who voted for "sex" on February 8 comes from
Rep. Martha Griffiths, who was one of the tellers. She told an interviewer
many years later that most of the pro- votes came from Southerners and Republicans.
(Brauer, 1983, 51, citing his January 11, 1979 interview with Griffiths).
The final vote on the entire Civil Rights bill was a roll call; the Civil
Rights Act was passed by a coalition of 152 (mostly Northern) Democrats
and 138 Republicans (1964 CQ Almanac, 606). It appears that responsibility
for the addition of "sex" to Title VII lies in the hands of the
Republican Members of the House of Representatives; they are the ones who
voted for both the "sex" amendment and the civil rights bill.
This does raise another question. Why should the Republicans, not noted
for their love of federal regulation, want to do this?
The
answer most likely lies in the Equal Rights Amendment, which had traditionally
received much more support from Republicans than Democrats. Support for
the ERA went into the Republican Party Platform earlier, and stayed in longer,
than in that of the Democrats. The Senate votes on the ERA in 1946, 1950,
and 1953 showed that many more Republicans than Democrats supported it (II:3
Congressional Quarterly, July-September 1946, 568; 1950 CQ Almanac, 539;
1953 CQ Almanac, 386). Opposition to the ERA since World War II had been
largely from labor unions and their supporters, whose elected representatives
were to be found primarily among Northern, and liberal, Democrats. Although
most everyone except the NWP thought the ERA was a dead issue, this did
not deter the NWP from combing the halls of Congress every year seeking
support. NWP stalwarts repeatedly asked Members to sign pledge cards, and
frequently compiled lists of sponsors. Their systematic lobbying educated
many Congresspeople about sex discrimination and built up a network of relationships
with those who were sympathetic to the NWP's concerns (Rupp and Taylor,
1987, 191).
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Nor should one assume that the Southerners' only motive in voting to add
"sex" to Title VII was their antagonism toward civil rights. To
judge from the sponsors, ERA sympathizers were largely Republicans and Southern
Democrats; i.e., people who had a distaste for government regulation and
were not attuned to the concerns of organized labor. Rep. Smith spoke in
favor of a "sex" amendment in 1956 and had been an ERA sponsor
since 1943; when he retired in 1966, the NWP lamented the loss of "our
Rock of Gibraltar" (1:7 NWP Bulletin, Nov.-Dec. 1966, 3; Reel 154,
NWP papers). Despite the humor that Smith injected into the "Ladies
Day" debate, what evidence there is, does not indicate that he had
proposed his amendment as a joke (Brauer, 1983, 45; Harrison, 1988, 295n20).
Although the prohibition of sex discrimination in employment became law
without the usual lengthy proceedings of major legislation, it was not as
thoughtless, or as devious, as has previously been assumed. Instead it was
the product of a small but dedicated group of women, in and out of Congress,
who knew how to take advantage of the momentum generated by a larger social
movement to promote their own goals, and a larger group of Congressmen willing
to make an affirmative statement in favor of women's rights. But it was
casual. At a time when the division between "men's jobs" and "women's
jobs" was still taken for granted, the implications of prohibiting
discrimination in employment on the basis of sex had not been fully explored.
If they had been, so revolutionary a proposal is unlikely to have passed.
Even the President's Commission cautioned that "[e]xperience is needed
in determining what constitutes unjustified discrimination in the treatment
of women workers" (Mead and Kaplan, 1976, 49; my emphasis). That is
why the "sex" provision is more easily understood as a surrogate
for the ERA, an issue which had been extensively discussed, if not agreed
upon. Indeed, when McDonough introduced his "sex" amendment to
the 1956 Civil Rights Act, he specifically linked it to the ERA and the
"voluminous evidence of record in hearings ... to show there has been
discrimination because of sex" (102 Cong. Rec., July 17, 1956, 13124.
In his papers at the University of Southern California, material on this
"sex" amendment is in the folder labeled "ERA"). After
40 years of effort, the NWP still had not persuaded two-thirds of Congress
to support the ERA, but it had apparently persuaded a majority.
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