Gillian Thomas - Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work

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To my parents

for everything.

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 Americas 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 Smiths proposal aloud. After the word religion insert sex on pages 68, 69, 70 and 71 of the bill.

Smith played his little amendment

Several of the Houses 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.

The session eventually dubbed Ladies Day in the House 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 ERAs supporters, he actually had been dropping hints for weeks that he intended to offer a sex amendment. (Most of the ERAs 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.)

When Smiths 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.

* * *

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 Smiths 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 teacherno surprise, given that job advertisements were divided into Help WantedFemale and Help WantedMale. Male bosses and coworkers leers, touches, and propositions were as much part of the air working women breathed as cigarette smoke. Getting pregnantand for some, even getting marriedmeant getting a pink slip.

Today, that Jane Crow

We never would have gotten from there to here without Title VII. But the laws 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 didnt always get a friendly hearing; in 1964, out of 422 federal judges in the nation, a paltry 3 were women. And because Title VIIs sex provision was added so late, there wasnt 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 nations judges.

Most of the women whose legal battles made it to this rare pinnacle arent 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 years, individual litigants werent 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 Smiths audience had. When a reporter asked the EEOCs first chair, Franklin Roosevelt, Jr., What about sex? he answered, Dont get me started. Im all for it,

Despite the fact that women filed one-third of the discrimination charges in the first year after the EEOC opened its doors, the agencys 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 Womenwhich was founded in 1966 by activists furious at the EEOCs inattention to Title VIIs sex provisionthe 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 laws 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.