Compromise and Victory
Peterson, Simchak, and the Women's Bureau staff started on a new bill immediately. Taking into account the various amendments of the administration bill offered in each house and the recommendations of the AFL-CIO, the new draft, again modeled on FLSA coverage, included the following provisions: enforcement by the secretary of labor, exemption of employers with fewer than twenty-five employees, prohibitions against compliance by wage cutting and against labor unions seeking unequal wage scales, use of the language "equal work" rather than "comparable work," a gradual elimination of wage differentials, and exclusion of offending firms from government contracts.
The draft bill represented a compromise. The AFL-CIO objected to FLSA coverage and to permitting employers to bring wages into line gradually. The Department of Labor disliked substituting "equal work" for "comparable work." Yet advocates of the legislation took the position that, for the moment, half a loaf was better than none.[28]
With the replacement of Secretary of Labor Arthur Goldberg by Under Secretary W. Willard Wirtz in September 1962, however, new problems appeared from within the administration. Goldberg had strongly backed the bill; Wirtz opposed it. With Wirtz running the shop, other equal pay opponents became bold. In response to a request for an opinion on the new bill, Walter Heller, chairman of the Council of Economic Advisers (CEA), notified the Bureau of the Budget that the council objected to the bill, citing a lack of "convincing evidence" and the
possibility that "economic" reasons, such as the "added costs" of hiring women, might account for such differentials as did exist. Heller based his letter on an internal memorandum, written by Norman Simler of the CEA staff. Simler, who warned the council that fighting the bill was like "opposing virtue," accused the Labor Department of supporting the bill for its vote-getting appeal and failing to document its contention that women were indeed paid less than men, relying on "common knowledge" rather than hard data. Simler found the bill more objectionable now that it referred to "equal work" rather than "comparable work"; he doubted that many men and women actually did "equal" jobs and feared employers could therefore easily evade enforcement efforts. He predicted that the Department would ultimately create another expensive bureaucracy that would not succeed in eliminating pay discrimination. "But even if it [the bill] could be administered and enforced," Simler argued, "no evidence is presented demonstrating a need for it."[29]
Peterson responded aggressively to the CEA's contentions, asserting that Heller's reasoning revealed "a complete lack of understanding of not only the political but the economic aspects of the bill." After a telephone conversation with Peterson, Heller agreed "to take another look at it," and to have Simler call her as well. Her conversation with Simler disclosed that his research had been limited; he had neither looked at the report of the committee hearings nor asked the Women's Bureau for additional information. The day following Peterson's conversation with the two, the Council of Economic Advisers withdrew its letter to the Budget Bureau.[30]
Both Simler and Heller remained unpersuaded, however. In a memorandum for the council, Simler summarized the evidence Peterson had offered to Congress in 1962. Although he included surveys of job-hiring orders with double pay scales, labor-management contracts that applied wage rates by sex, two private surveys of employers totaling more than two thousand firms of which one-third admitted to double pay standards, and a survey of salary schedules by the National Education Association showing one salary rate for men and and another for women teachers in sixteen school districts, he insisted that the differing wage rates could reflect disparities in job content that
the titles failed to disclose. He concluded: "What this all adds up to is that the Labor Department does not have one shred of evidence, except possibly the 120 cases of job orders . . . , that there is discrimination in wage rates based on sex where men and women perform equal work on jobs requiring equal skill in the same place of employment."[31] Still, Heller said, the Council of Economic Advisers would not enter "objection" to the bill.[32]
Disturbed by the new opposition from within the administration, Peterson dealt with Wirtz directly. In a February 1963 meeting, he objected to the costs of enforcing the equal pay law. Perceiving a lack of sympathy on his part for women affected by such discrimination, Peterson argued that his objection to administrative enforcement would embarrass the administration vis-à-vis unions and women's organizations. Moreover, the amount of money requested for enforcement was small in comparison to other allocations. "It does not seem unreasonable," Peterson maintained, "to spend approximately the same amount of money the government now spends on paper clips and stapling machines in order to protect the pay of 24 million women members of the labor force." Peterson argued also from the political standpoint—that women felt that pay and job discrimination affected them seriously and that such a bill would impress groups such as the BPW, possibly breaking them away from their traditionally Republican allegiance. She recognized that the bill constituted only a first step for women: "This Bill will not give most of them real relief, since it does not give them equal opportunity." But it would point the way to future steps.[33]
Peterson prevailed; the Bureau of the Budget finally advised that it would not obstruct the bill. Despite the continuing objections of Secretary Wirtz and CEA chairman Heller, Peterson carried the administration bill to the Hill on February 14, 1963, where it was introduced in the House by Edith Green and in the Senate by Pat McNamara.[34] The prohibition against compliance by lowering wages had been omitted because McNamara believed the bill included the injunction implicitly. The Labor Department continued to amass better evidence of the bill's need, and the AFL-CIO Executive Council issued a statement calling for prompt action without detrimental amendments.
Frank Thompson, chairman of the House Select Subcommittee on Labor (who kept material on the bill filed under B for "Broads"), scheduled hearings for the middle of March, hoping that, in view of the extensive hearings held the previous year, testimony would be brief.[35]
This time, business representatives organized early. The Chamber of Commerce urged its members to write or wire their representatives telling them that the bill would give the government "sweeping powers over industry" and make the secretary of labor "prosecutor, judge, and jury."[36] Manufacturers' associations met with Labor Department officials and complained that the new bill did not take into account the "added costs" of hiring women or the fate of small manufacturers who would go out of business if they had to raise women's wages.[37]
Representative Charles Goodell (R-N.Y.) sympathized with these complaints. Goodell himself believed the administration bill to be too vague; in conjunction with labor and industry representatives, particularly officials of Corning Glass Works, an important New York employer, Goodell offered a bill simply amending the Fair Labor Standards Act. As such, the bill contained no twenty-five employee test, it narrowed coverage by excluding all the exempted occupations included in section 13 of the FLSA, and it utilized the enforcement provisions of the FLSA, which meant that only the courts could compel employers to comply.[38]
During the hearings in March and April, Peterson and the bureau's allies testified against Goodell's approach. Amending the FLSA would bring undesirable consequences, they said, particularly the unavailability of administrative enforcement and the exclusion of several categories of employees from coverage. The AFL-CIO representative argued that even the coverage of the administration bill (which followed the FLSA in affecting only employers "engaged in" commerce) fell short; the labor organization still preferred the broader scope of the National Labor Relations Act.[39]
This time, four corporate executives spoke in opposition to any equal pay law, and five more submitted written statements. Their objections rested on the powers given the secretary of labor to "harass" businesses, the supposed added costs of hiring
women, the anticipated difficulty of assessing equality of work, and the lack of a need for federal legislation. Some firms, though, reflecting an awareness of the likelihood that some bill would pass, testified in favor of legislation if it were to be an amendment to the Fair Labor Standards Act.[40]
Business opposition to the administration measure was much more vocal than it had been in the fifties, when the bill had failed without it. After the hearings, pressure mounted to assuage business fears by enacting equal pay legislation through revision of the Fair Labor Standards Act. Although the Department of Labor feared this proposal might open up the FLSA to other less desirable amendments, advantages became apparent. By way of compromise, the administration bill had limited coverage to employers with twenty-five or more employees; because the FLSA applied to all employers with two or more employees "engaged in commerce," amending the FLSA would actually increase by about three million the number of employees covered. With business objection so strong, Peterson and others feared that administrative enforcement would be lost in the legislative process anyway, and the FLSA provided established investigative practices that often resulted in voluntary compliance before court action became necessary. Goodell's bill had the recorded support of many Republicans; it appealed to legislators because it was "simple"—it did not require new procedures or machinery. The Department of Labor began to consider any other prospect of passage unlikely.[41]
After close consultation with Peterson, Simchak and other Labor Department staff, the Senate and House committees decided to endorse amendment of the FLSA. On April 30, Pat McNamara introduced such a bill in the Senate, with Edith Green following in the House on May 6. Both bills prohibited discrimination on the basis of sex in the payment of wages for "equal work on jobs the performance of which requires equal skill, effort and responsibility, and are performed under similar working conditions," and neither permitted employers to lower wages rates to reach this goal. The act was to take effect one year from the date of passage. Both the House and the Senate committees reported the bills quickly and favorably, barely one week
after their introduction, despite an attempt by the Chamber of Commerce to instigate further hearings because of "inadequate" consideration of this approach in the earlier hearings.[42] In response to the congressional committee reports, Peterson stated: "There are advantages and disadvantages to this FLSA route, but the decision was made by the Congress and we believe the bills as reported out of committee are good ones." With little debate, the Senate passed the bill on May 17.[43]
Peterson had consulted with the AFL-CIO before consenting to Goodell's proposal, and, reluctantly, the organization supported the new bill.[44] Writing to members of Congress, Andrew J. Biemiller, director of the Department of Legislation, asked for their vote in favor but observed that the bill did not meet even "minimum requirements for equal pay legislation" and cautioned against any further weakening amendments. Yet Biemiller also stated that the organization would support an amendment to delete a provision granting an extra one-year stay of the law in cases where the employees were covered by a union contract. The measures granted relief, claimed Biemiller, not to unions but to employers.[45]
During the House debate at the end of May, few representatives spoke against the bill in general, although several offered specific amendments. Motions to forbid the secretary of labor to investigate without a written complaint and to permit employers to pass along "costs of hiring women" in wage differences both met defeat. Those amendments that were adopted did not eviscerate the bill: the House spelled out that wage differentials resulting from seniority, merit, or piece rate would not be illegitimate, and added a provision making labor unions culpable if they attempted to get an employer to agree to wage differentials based on sex. Many representatives commended the choice to amend the Fair Labor Standards Act over other methods of enactment. The bill in the House passed easily on May 23.[46]
Senator McNamara, contradicting assertions made on the House floor, took pains to state for the record that the bill did not require "a pattern of violation" for an employer to be culpable and that the Senate did not construe "equal" to mean "identical." The Senate then concurred in the House amendments—
the final legislative action—on May 28. Thus, eighteen years after its initial proposal, an equal pay bill came before the president for his signature.[47]
The long fight for an equal pay law culminated in a signing ceremony in the president's office on June 10, 1963, with several congresswomen, Wirtz, Peterson, Simchak, and Labor Department staff members, representatives of women's organizations, Mary Anderson, and Frances Perkins in attendance. In his remarks, drafted at the Labor Department, Kennedy observed that despite the work still to be done, the law represented a significant moment.[48]
Although its focus was narrow, the Equal Pay Act marked the entrance of the federal government into the field of safeguarding the right of women to hold employment on the same basis as men. Traditionally, the business community had justified women's lower wages by claiming that women worked for "pin money," not for income to support their families. By making wage discrimination illegal, the federal government undermined this view and implicitly supported, for the first time, the contention that paid employment was consonant with a woman's obligations as wife and mother.[49]
Women who had worked long and hard for equal pay legislation expressed deep gratitude to Peterson. Wrote Caroline Davis of the UAW:
It could never have happened without the tremendous effort put forth on your part and the work of the women in your U.S. Women's Bureau under your expert guidance. Believe me I know, because for 15 years that I have been on the staff of the UAW we have worked to secure passage of a law, and at a time had high expectations, only to have [them] dashed before we got very far. This is indeed a great accomplishment on your part and you can rightfully be very proud that your influence played the greatest part in securing this victory.[50]
Indeed, the leadership of the Women's Bureau proved crucial. The bureau forged a compromise by persuading women's organizations and labor groups to accept a bill lacking features they had considered vital and by quashing disunity in the administration. In its final form, the equal pay law guaranteed equal
pay for "equal" rather than "comparable" work; it excluded employees not covered by the Fair Labor Standards Act; it contained no provision for administrative enforcement. Yet future amendments to the Fair Labor Standards Act extended coverage, and the procedures established by the Wage and Hour Division of the Department of Labor ultimately offered good results. Court decisions construed the meaning of "equal work" liberally, declining to apply the law solely to identical jobs: in the first ten years of its enforcement, 171,000 employees had been awarded $84 million in back pay alone under the provisions of the law.[51]
The Women's Bureau coalition had succeeded in enacting its chief legislative objective through the advantages of a sympathetic social setting, an administration tied to its labor constituency, and effective leadership in Peterson and Goldberg. This particular combination of circumstances permitted the Women's Bureau coalition to achieve yet another of its goals: a commission on the status of women that had the power to reach beyond the narrow limits of an equal pay law and examine the whole question of women's status, even while draining away the minimal energy still fueling the Equal Rights Amendment.