The Equal Employment Opportunity Commission
The EEOC's willingness to retain protective labor laws did not stem only from its concern for the opinions of the groups lobbying it; EEOC commissioners and staff also expressed a general belief that the addition of sex to the law had been illegitimate—merely a ploy to kill the bill—and that it did not therefore constitute a mandate to equalize women's employment opportunities. Aileen Hernandez, the only woman on the commission, later recalled that the subject of sex discrimination elicited either "boredom" or "virulent hostility."[43] In September 1965, EEOC executive director N. Thompson Powers told Secretary Wirtz that "the Commission is very much aware of the importance of not becoming known as the 'sex commission.'"[44] By November 1965 Herman Edelsberg had succeeded Powers, and he told the press: "There are people on this Commission who think that no man should be required to have a male secretary—and I am one of them."[45]
The commission's attitude revealed itself in both its actions and its words. Title VII included a clear ban on segregated employment advertisements; the act read: "It shall be an unlawful employment practice for an employer . . . to publish or cause to be . . . published any notice or advertisement relating to employment . . . indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin" except in the case of a bona fide occupational qualification. The EEOC quickly ruled that newspaper adver-
tisements for jobs segregated by race constituted a clear transgression of the act but convened an ad hoc committee to determine whether sex-segregated want ads similarly violated the statute, since sex would presumably be a bona fide occupational qualification more often than race.
The committee comprised fourteen members from advertising agencies, newspapers, and business firms, two from the Department of Labor, and one from the American Nurses Association. Not surprisingly, this group, with its disproportionate representation of commercial interests, resolved that want ads segregated by sex did not contravene Title VII.[46] Moreover, Abraham Fortas, then on the Supreme Court, reportedly told Johnson that the Court would strike down a regulation banning sex-labeled want ads as a violation of the First Amendment's free press clause. The EEOC had initially split three to two for making sex-segregated want ads illegal. Commissioners Richard Graham, a white Republican from Wisconsin, Aileen Hernandez, a black woman from California, and Sam Jackson, a black Republican from Kansas, supported the ban, with commission chairman Franklin Roosevelt, Jr., and vice-chairman Luther Holcomb opposed. After Holcomb passed along Fortas's opinion from Johnson, Jackson changed his vote.[47] In August 1965, the EEOC issued its ruling that employers could advertise in sex-segregated columns. The commission required only that newspapers publish a disclaimer informing readers that the headings were not intended to be discriminatory but only reflected that fact that some jobs were of more interest to one sex than another. The EEOC ignored the recommendation of the CACSW that advertising be sex-neutral.[48]
Although the EEOC had issued a regulation that directly contradicted the wording of Title VII, it received criticism even for the mild restraint it had imposed on the newspapers. The ostensibly liberal New Republic believed the commission would have done better simply to have ignored the sex provision. "Why," asked the journal, "should a mischievous joke perpetrated on the floor of the House of Representatives be treated by a responsible administrative body with this kind of seriousness?"[49]
The New Republic spoke for many; the ban on sex discrimination elicited derision and ridicule. The Wall Street Journal , in an
article published a week before the effective date of the act, asked its readers to picture, if they could, "a shapeless, knobby-kneed male 'bunny' serving drinks to a group of stunned businessmen in a Playboy Club" or a "matronly vice-president" chasing a male secretary around her desk.[50] EEOC's own executive director, Herman Edelsberg, reportedly circulated a suggestion that the commission seal depict a brown rabbit, together with a white rabbit "couchant," with the legend "Vive la différence."[51] A personnel officer at a large airline described his employer as "unnerved" by the ban on sex discrimination. "What are we going to do now," the personnel officer asked, "when a gal walks into our office, demands a job as an airline pilot and has the credentials to qualify?" A manager of an electronic components company that employed only women suggested sarcastically, "I suppose we'll have to advertise for people with small, nimble fingers and hire the first male midget with unusual dexterity [who] shows up."[52]
Business attitudes placed the EEOC on the defensive. One official told the Wall Street Journal that the government intended to enforce the sex prohibition with great leniency "if the women's groups will let us get away with it." Nevertheless, commission staff explained apologetically, "some interpretations must be made if those provisions are to make sense and to be understandable to those covered."[53]
In November 1965, sixteen months after passage of the 1964 Civil Rights Act and four months after it went into effect, the EEOC finally issued full guidelines on sex discrimination under Title VII; the business community's fears were assuaged. The commission reiterated that it had received no help from the legislative history of the amendment; state laws, it said, constituted particularly difficult problems, but it did not believe that Congress intended to disturb laws that protected women against hazard or exploitation. The commission therefore stated that it would not consider the necessity to pay women minimum wages or premium wages for overtime as valid reasons for discriminating against women, and where the law permitted administrative exemption from state hours laws employers would have to seek them. An employer would not be breaking the law, however, if he refused to hire a woman for a job from which she was barred
by state statute.[54] In a December letter to a member of the National Woman's party, commissioner Richard Graham explained: "There seems to be a widely held misconception that this Commission can or would overturn state protective legislation. This is not the case. . . . If there is a clear conflict between the laws, we would not ask that [an employer] violate the state law. Rather, we would suggest that this conflict be brought to the attention of the Governor or the State Legislature or the state commission for remedy."[55] In any case, the woman herself could bring suit, and the courts might render a judgment that essentially overturned state law. At a press conference on the new guidelines, commission chairman Franklin D. Roosevelt, Jr., assured the public that the guidelines would not result in a massive assault on sex-segregated jobs.[56] Four months later, the New York Times quoted a commission spokesperson as saying that the EEOC had moved cautiously on sex discrimination because of the lack of legal precedent, because of a concern for protective labor legislation, and because "it did not want this area to interfere with its main concern, racial discrimination."[57]
The following month, April 1966, the commission once again evinced its half-hearted commitment to enforcing the prohibition of sex discrimination. It yielded to pressure from advertisers and newspapers who had already breached the original ruling on want ads by failing to print the disclaimer of discrimination. Ignoring the recommendations of the ICSW and the CACSW, the Equal Employment Opportunity Commission amended its regulations to permit the placement of job notices in sex-segregated columns without any restriction, except that the ad itself could not state a preference.[58] Commission vice-chair Luther Holcomb (now acting chairman since the resignation of Franklin Roosevelt, Jr., to run for governor of New York) believed that aggressive action on the part of the EEOC would hurt President Johnson's reputation. His judgment, combined with pressure from the newspaper industry, prevailed. Executive director Edelsberg explained the commission's action by observing that the sex amendment was a "fluke" "conceived out of wedlock."[59] Esther Peterson warned Secretary Wirtz that interested women's groups might "react strongly to the abandonment of any attempt by the EEOC to enforce the sex-segregated adver-
tisement ban of Title VII." Peterson herself asserted that "any rationale for this action on the part of the Commission is difficult to perceive."[60]
Peterson's prediction that the EEOC action would inspire protest proved correct. In June Martha Griffiths, one of the prime movers behind the sex amendment to Title VII, took to the House floor to blast the commission's decision. Griffiths accused the EEOC of a "wholly negative attitude" toward the sex provision, observing that it focused on ridiculous examples such as Playboy bunnies and male housemothers of college sororities. It had reached a "peak of contempt," she said, with the issuance of the ruling permitting sex-segregated want ads. This interpretation, Griffiths contended, bespoke on the part of the EEOC "nothing more than arbitrary arrogance, disregard of law, and a manifestation of flat hostility to the human rights of women."[61]
Convinced of the power of Griffith's speech, Catherine East saw an opportunity to build support to change the EEOC's attitude. The third meeting of delegates from state commissions around the country was about to take place, planned by the CACSW. East arranged for copies of Griffith's speech to be distributed to the participants.[62]
Although she was proud of the accomplishments of the President's Commission on the Status of Women and of the CACSW, East recognized that the ability of these bodies to make major changes was limited by their identification with the administration in power. East and her colleagues who had worked in the government had been looking for an outside group to take the lead and force the EEOC to respond seriously to the issue of sex discrimination in employment. The members of the state commissions arriving in Washington had been primed. The moment had arrived.