On February 8, 1964, an eighty-year-old segregationist congressman named Howard Smith stepped onto the floor of the House of Representatives and changed the lives of America’s working women forever.
It was the eighth and last day of debate on a bill that would become the landmark 1964 Civil Rights Act, and Smith had a proposed amendment to Title VII, the section dealing with equal employment opportunity. The current draft already prohibited discrimination because of race, color, religion, and national origin, but Smith, a Democrat from Virginia, wanted to add one more category. The clerk read Smith’s proposal aloud. “After the word ‘religion’ insert ‘sex’ on pages 68, 69, 70 and 71 of the bill.”
Smith played his “little amendment” for laughs, claiming to have been inspired by a letter he had received from a female constituent. She asked the government to “protect our spinster friends,” who were suffering from a shortage of eligible bachelors. Over guffaws from his virtually all-male audience, Smith concluded, “I read that letter just to illustrate that women have some real grievances and some real rights to be protected. I am serious about this thing.” Emanuel Celler of New York, the bill’s floor manager in the House, joined in the fun. “I can say as a result of forty-nine years of experience—and I celebrate my fiftieth wedding anniversary next year—that women, indeed, are not in the minority in my house,” he said. “I usually have the last two words, and those words are, ‘Yes, dear.’”
Several of the House’s twelve women representatives rose to try to silence the laughter and advocate seriously for the amendment. Martha Griffiths, Democrat of Michigan, was the one who finally succeeded. “I presume that if there had been any necessity to point out that women were a second-class sex,” she said, “the laughter would have proved it.” Griffiths (who supported the bill) made a shrewd appeal to the Civil Rights Act’s opponents, mainly Southern Democrats like Smith. By then, it looked inevitable that the law they hated had enough votes to pass. So she warned that without the sex provision, Title VII would afford more rights to black women than to white women. “A vote against this amendment today by a white man is a vote against his wife, or his widow, or his daughter, or his sister.”
Civil rights for women were, literally, a joke.
The session eventually dubbed “Ladies Day in the House” had the hallmarks of an impromptu stunt by Smith to try to sink the Civil Rights Act. Civil rights for African Americans might have been palatable to many white legislators now that the horrors of Bull Connor and Birmingham had become national news, but civil rights for women were, literally, a joke.
Though it might have seemed incongruous for an avowed enemy of civil rights, Howard Smith had a long history of supporting the Equal Rights Amendment. Under pressure from the ERA’s supporters, he actually had been dropping hints for weeks that he intended to offer a “sex” amendment. (Most of the ERA’s supporters were white, and many kept alive a legacy of not-so-subtly racist activism dating back a century that decried expanded legal protections for African American men, such as the right to vote, that were denied to women.) As a friend to southern manufacturing interests, Smith also might have understood the human capital that would be freed up by a federal law nullifying widespread state law restrictions on women’s ability to work as many hours as men.
When Smith’s amendment was put to a vote a few hours later, it passed 168 to 133, with the most votes in favor cast by Republicans and Southern Democrats. From the gallery came a woman’s shout, “We’ve won! We’ve won!” and then another’s cry, “We made it! God bless America!” After the bill moved to the Senate for consideration, Smith’s amendment remained intact. When President Lyndon Johnson signed the Civil Rights Act into law on July 2, 1964, among its provisions was a ban on discrimination in employment “because of sex.”
Today most American working women would probably be surprised to know that they have an unrepentantly racist, male octogenarian to thank for outlawing sex bias on the job. Although historians continue to debate Howard Smith’s motives, the law best known as a monumental achievement for African Americans’ civil rights was a milestone in the struggle for sex equality too. Title VII started a revolution for women.
In the Mad Men world of 1964, fewer than half of American women were in the paid labor force, making up just one-third of workers. Most working women were concentrated in a few, low-paying jobs, such as secretary, waitress, and teacher—no surprise, given that job advertisements were divided into “Help Wanted—Female” and “Help Wanted—Male.” Male bosses’ and coworkers’ leers, touches, and propositions were as much part of the air working women breathed as cigarette smoke. Getting pregnant—and for some, even getting married—meant getting a pink slip.
Today, that “Jane Crow” system no longer exists. Sixty percent of all women work outside the home, making up close to half of all American workers, and 70 percent of mothers work outside the home. Women populate the highest ranks of politics, business, medicine, law, journalism, and academia, to name only a few. A third of the justices on the Supreme Court are women, and a woman president is inevitable, possibly imminent. The ubiquitous sexual conduct previously understood to be “just the way things are” now has a name: sexual harassment. Women routinely work until late in their pregnancies, and most return to work after having their babies.
Most working women were concentrated in a few, low-paying jobs, such as secretary, waitress, and teacher—no surprise, given that job advertisements were divided into ‘Help Wanted—Female” and “Help Wanted—Male.’
We never would have gotten from there to here without Title VII. But the law’s enactment in 1964 was just the beginning. What happened next is where this book begins.
Women began stepping forward to use Title VII to get justice at work. The first women who sued under Title VII didn’t always get a friendly hearing; in 1964, out of 422 federal judges in the nation, a paltry 3 were women. And because Title VII’s sex provision was added so late, there wasn’t the usual history of congressional hearings and committee reports to define what discrimination “because of sex” even meant.
But with each favorable decision issued by each court, the contours of that definition began to emerge. A small fraction of these cases were propelled all the way to the Supreme Court, whose interpretation of Title VII then bound all of the nation’s judges.
Most of the women whose legal battles made it to this rare pinnacle aren’t well known: Ida Phillips, Brenda Mieth, Kim Rawlinson, the women of the Los Angeles Department of Water and Power, Mechelle Vinson, Lillian Garland, Ann Hopkins, the women of battery maker Johnson Controls, Teresa Harris, Sheila White, and Peggy Young. Most were middle or working class, and most fought their cases alone for years, save for their dedicated attorneys and some supportive family and friends. None filed her lawsuit intending to end up before the nine justices. They all just wanted to work.
For many year, individual litigants weren’t just doing battle with biased employers or indifferent judges. The U.S. Equal Employment Opportunity Commission, the agency created by Title VII to enforce the statute, considered the sex amendment to be just as silly as Howard Smith’s audience had. When a reporter asked the EEOC’s first chair, Franklin Roosevelt, Jr., “What about sex?” he answered, “Don’t get me started. I’m all for it,” while one of the agency’s first executive directors dismissed the sex provision as a “fluke” that was “conceived out of wedlock.” The hilarity of the notion that all jobs should be open to both sexes spawned a running joke, abetted by agency officials, that Title VII had created a “bunny problem”—as in requiring that hairy-legged men be hired as Playboy Bunnies. Similarly confounding scenarios, wrote The New York Times, included “the woman who applies for a job as an attendant at a Turkish bath, a man who wants to clerk in a woman’s corset shop, the woman who wants employment aboard a tug that has sleeping quarters only for men.”
Millions of women in this country labor in jobs that keep them in poverty, that endanger their health, that provide no retirement security or other benefits, that take no account of pregnancy or caregiving responsibilities or even the need to take an occasional sick day.
Despite the fact that women filed one-third of the discrimination charges in the first year after the EEOC opened its doors, the agency’s chauvinism made it slow to address the myriad questions those charges posed. Thanks largely to the efforts of a small but determined cadre of women staff attorneys, along with protests launched by the National Organization of Women—which was founded in 1966 by activists furious at the EEOC’s inattention to Title VII’s sex provision—the agency eventually started taking more aggressive positions. It issued opinions ruling that sex-segregated want ads violated the law, that airlines’ no-marriage policies for flight attendants unlawfully relegated them to the role of sex object, and that state “protective laws” limiting the weight women could lift or the hours they could work were preempted by Title VII and therefore null and void. When Title VII was amended in 1972 to give the EEOC power to bring litigation in its own name, those lawsuits became critical complements to the hundreds of individual cases already being litigated around the country.
The successes celebrated in this book are not meant to suggest that Title VII was or is a panacea for sex inequality at work. For one thing, the law does not even apply to employers with fewer than fifteen employees, which by one estimate leaves nearly one-fifth of the workforce, male and female, without the law’s protections.
Millions of women in this country labor in jobs that keep them in poverty, that endanger their health, that provide no retirement security or other benefits, that take no account of pregnancy or caregiving responsibilities or even the need to take an occasional sick day. Even for professional women, pregnancy and motherhood remain profoundly disruptive to career progression and spawn pernicious stereotypes about their commitment to their jobs. Sexual harassment remains pervasive, especially in male-dominated fields and the low-wage and tipped workforces; e-mail, texts, and social media have given harassers new and sometimes terrifying ways of conveying unwelcome attention. Pay inequality, even when controlling for education and experience, has stalled. White women have inched up to making 78 cents for every male dollar, while the numbers for women of color are, predictably, far worse. It’s still a curiosity to see a female construction worker or a female firefighter (or, for that matter, a male nurse or a male secretary). Women also are chronically underrepresented in science, technology, engineering, and math (STEM) fields and the financial industries, and their numbers are also far too small in the top positions on the corporate ladder.
Only some of these problems can be attributed to discrimination “because of sex.” Others will have to be addressed by passing new laws, or amending old ones. Some will demand voluntary changes in employer policies, and still others will have to be left to the glacial process of cultural change. But even though it’s easy to get discouraged about the glaring inequalities we see everywhere around us, there is some benefit to being reminded that it used to be so much worse.
The women who had brought cases that wound up before the Supreme Court had faced an additional challenge: They were breaking new legal ground entirely.
One prominent feminist lawyer wrote about her experience representing women in employment discrimination cases, “Because this road is so tough, I often hear clients say, ‘Why me? Why did this have to happen to me? Why has my life been turned upside down by this creep who had no right to do this to me?’ And it is unfair. But the law has been transformed by the many women who have bravely stepped up and paved the way for the rest of us.”
This book aims to pay tribute to some of those women. They achieved landmark legal victories that benefited millions, despite usually having very little to show for it themselves in the end. Many of the rights established by the cases in this book have become so assimilated into our reality that we don’t even realize there was a time not very long ago when they didn’t exist.
I was inspired to write this book by my own experiences representing women very much like those featured in its pages. Reflecting on the tenacity shown by my own clients in trying to right the wrongs done to them, often at considerable personal cost, I realized that the women who had brought cases that wound up before the Supreme Court had faced an additional challenge: They were breaking new legal ground entirely. While I had the benefit of citing to the precedent they had helped to create, when they went to court, their predicaments presented questions that the law had barely begun to address.
Forging ahead with a sex discrimination lawsuit where the odds of a favorable outcome were so uncertain, and where the culture was still so skeptical of working women, took a special brand of moxie. I wanted to try to know these women, and to tell their stories.
Excerpt from Macmillian Publishing: Gillian Thomas’ Because of Sex (2016).