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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).



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).



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.



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).



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





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.)



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.



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).



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.





REFERENCES

