Date:    11-08-94 11:57 (Public)
 From:    Donna.
 To:      All
 Subject: How Sex Got Into Title VI

Originally published as: "How Sex Got Into Title VII: Persistent Opportunism
as a Maker of Public Policy", Law and Inequality: A Journal of Theory and
Practice, Vol. 9, No. 2, March 1991, pp. 163-184. Permission to copy
electronically is given by author provided that copies are not made for
financial gain and the paper is distributed in its entirety, including title
and author. No more than one paper copy may be made without permission of the
author. This file was prepared for electronic distribution by the inforM

                  How "Sex" Got Into Title VII:
       Persistent Opportunism as a Maker of Public Policy
                          by Jo Freeman

[email protected]
410 East 8th Street
Brooklyn, New York 11218


The addition of "sex" to Title VII of the 1964 Civil Rights Act,
which prohibited discrimination in employment, during floor
debate in the House of Representatives, was a major innovation in
public policy toward women.  An analysis of how it happened can
contribute to our understanding of policy development.  Since it
was proposed by a Southern Congressman opposed to civil rights,
and the debate was noted for its humor, the event was not taken
seriously at the time.  Even today most practitioners and
political scientists assume it was just a ploy to scuttle the
bill which had numerous unexpected and unintended consequences.
However, a reading of the historical and Congressional record
illuminates a very different interpretation.  The "sex" amendment
was initiated by the National Woman's Party, which had been
lobbying Congress for the Equal Rights Amendment for forty years.
The NWP's policy was to try to include "sex" with any attempt to
ensure or expanded rights for other groups, and this was not its
first success.  Although the vote on the amendment was not a roll
call, the limited evidence available indicates that the crucial
margin of victory was supplied by Republican Congressmen who
supported civil rights, not Southerners who opposed the bill.
These Members most likely voted for "sex" as a surrogate for the
ERA, on which they had been lobbied for years, and as a response
to testimony on sex discrimination in employment which they had
become aware of through this lobbying and through hearings on the
Equal Pay Act the year before.  Thus the addition of "sex" to
Title VII may not be a case of "acute" innovation, as it first
appears, but of the more typical "inncubated" legislation.

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. (1)  On
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 the bill in order "to prevent discrimination against another
minority group, the women". (2)  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. (3)  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, (4)
fully one-third of the complaints filed in the first year charged
discrimination on the basis of sex. (5)  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.  NOW also provided lawyers for women who wanted to take
their sex discrimination complaints to court. (6)  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. (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.(8)

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". (9)  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". (10)  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; (11) 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". (12)

    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. (13)  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. (14) 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 (15)
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, (16) 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". (17)

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. (18)  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. (19)

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. (20)

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. (21)  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. (22)

The ERA never had a chance in the House.  Emanual Celler (D. NY)
had been Chair of the Judiciary Committee since 1949.  He was a
crusty liberal from Brooklyn who shared 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. (23)  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. (24) Consequently, it could still get the ERA introduced
into Congress, but it could not get it out. (25)

[more later]

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