3
"Specific Bills for Specific Ills": Equal Pay Legislation

The cardinal premise of the Women's Bureau coalition held that the Equal Rights Amendment would do little to help women; discrimination could be eliminated only by the prudent enactment of "specific bills for specific ills." The "specific bill" offered by ERA opponents in 1945 sought to protect equal pay for equal work for women in private employment. Such a strategy possessed several advantages: it gave opponents of the ERA a positive goal rather than a negative one; it took advantage of the wartime impulse to recognize the contribution of women in jobs traditionally done by men; it allowed a focus on unfair practices that genuinely harmed women and their families, sidelining discussion about whether "theoretical" statements of equality were of value; it proposed a change in the law that was less unsettling than the ERA because it was so much narrower; and it placed ERA adversaries squarely in favor of eliminating discrimination.

But this bill faced a major problem in the postwar world. Higher wage rates would draw more women into the workforce, not encourage them to stay home. Thus the impulse to reward women for their wartime efforts ran counter to another current: the fear that returning soldiers would face job shortages. Making it more lucrative for women to stay in the workforce would hinder men's efforts to find jobs. Moreover, federal support, in the form of legislation guaranteeing equal opportunity in the workplace, would appear to confirm the social shifts the war had produced. The war had made working women visible—and that visibility made people nervous. The fight for equal pay once again played out the tension between institutionalizing the war-

time gains of women in the public arena and reinstalling them as keepers of the hearth.

In addition, the quest for equal pay legislation was hampered by the ERA struggle. Because it had been proposed by ERA opponents, some advocates of the amendment viewed the legislation with suspicion. The ERA continued to be the chief legislative goal of the groups that favored it, and the primary supporters of equal pay never devoted equivalent resources to getting their bill through. The split between the pro- and anti-ERA forces made it more difficult for women to overcome both the "back to the home" sentiment and the conservative animus against business regulation in general.

By the end of the following decade, however, both the economic and the social context had changed. Women had clearly become a permanent part of the labor force—bound securely to women's jobs. The expanding peacetime economy, in fact, had created more service and clerical jobs than ever before, so employers welcomed—indeed, sought—women workers. In assuming these jobs, women continued to bear the major responsibility for their families' welfare, so the burden on husbands of working wives was small. With the newly generated need for women workers, the sentiment in favor of equal pay legislation began to grow, and it soon stood a real chance of passage. But social and economic supports were necessary, not sufficient, conditions. Real success required a more favorable political situation.

In the postwar period, President Truman gave the reformers seeking an equal pay law reason to believe he would support such an effort. After assuming office on Franklin Roosevelt's death, he made clear gestures to identify himself with his predecessor's liberal program, designed to encourage growth and progress in the postwar period. He promoted national health insurance and aid to education and, in particular, took a stand against discrimination by issuing executive orders banning prejudicial actions against black Americans in the civil service and in the military. Such efforts made it plain that discrimination against any group in the United States—even women—could be combatted through federal measures.^[1]

At the same time, though, the government had focused its sights on trying to cap the skyrocketing inflation rate and maxi-

mizing the employment of former GIs. Yet President Truman seemed unable to craft an effective program to meet these needs, or to deal with labor unrest that led to strikes in the steel, automobile, electric, coal, maritime, and railroad industries.^[2] In the 1946 elections Republicans took control of both houses of Congress for the first time in fourteen years. The Taft-Hartley Act, passed over the president's veto in June 1947, circumscribed the right of unions to control hiring. Policy goals sought to keep wage rates down and the employment of males up. Nevertheless, women activists in Washington, interested in advancing women's status even while maintaining "reasonable distinctions" between the sexes, worked to raise women's wages and assert their right to jobs.

The quest began in February 1945 when the National Committee to Defeat the UnEqual Rights Amendment drafted a bill to be introduced by Senators Wayne Morse (R-Oreg.) and Claude Pepper (D-Fla.). NCDURA's desire to eliminate a prevalent and serious problem for women workers was geniune, and it solicited the backing of all women's organizations, both favorable to and hostile toward the ERA. In order to separate equal pay from its opposition to the ERA, NCDURA established an independent national equal pay committee, which the pro-ERA BPW quickly agreed to join.^[3]

But however sincere the motives of supporters of equal pay, the impetus for the measure was the desire to divert attention from the ERA. NCDURA counseled its members to urge legislators to vote both in favor of the equal pay bill and against the ERA, and Mary Anderson, the ERA's archfoe (who had resigned the year before, at age seventy-two, as director of the Women's Bureau), herself chaired the new equal pay committee and drew up the bill. The bill thus got hit from two sides—by those who favored the ERA and did not want what they saw as a more important effort vitiated by a narrower one, and by those who opposed any interference in the workplace and wanted no law at all.

Often both these opponents were conservatives, either Republicans or conservative Democrats. Although the liberal-conservative split was muddled in the ERA battle, on the question of equal pay it stood out clearly. Equal pay legislation

came out of the protective labor law tradition, and the original version of the bill protected only women's wage rates. Liberal organizations lined up behind the bill, but conservatives who supported independent free enterprise opposed an equal pay law. Those conservatives who also supported the ERA thus had two "good" reasons to fight equal pay legislation.

In proposing to protect women's wage rates, the liberals were arguing not in favor of new roles for women but for recognizing the reality, however undesirable it might be, of women in the workforce. Working women had taken jobs because they needed the money. Equity and decency demanded that employers pay them a fair wage—that is, the rate a man earned for the same job.

The argument might have carried the day, but in drafting the bill, Anderson, never politically astute, ignored important political considerations and made several inflammatory moves. She modeled the bill after the sweeping coverage of the National Labor Relations Act, which applied to employers engaged in businesses "affecting" commerce, rather than following the narrower coverage of the Fair Labor Standards Act, which applied only to those actually participating in interstate commerce. The bill protected the pay only of women; a man earning less than a woman at a particular job (assuming such a person existed) had no recourse. Although not important from a practical point of view, the exclusion of men from the law's protection gave the bill's opponents a powerful "equal treatment" argument to use against it. The bill also forbade employers to discharge women without cause, a provision intended to help women keep wartime employment (a goal few endorsed in 1945). Anderson went so far as to vest enforcement power in the director of the Women's Bureau. A fact-finding agency, the bureau had never had this kind of enforcement authority and had no machinery to perform it. The provision of the bill that sparked the most opposition provided for an "advisory committee" that would establish wage differentials among different types of work. Opponents could thus contend that the bureau had aims completely apart from the mere protection of women's wage rates. Finally, the bill permitted the blacklisting of employers found guilty of wage discrimination, a red flag to business interests whose cooperation

the bill's supporters needed. Said one partisan, in something of an understatement: "With the enactment of this law, we will be entering [an] . . . unchartered [sic ] field."^[4]

The chances for some kind of equal pay legislation looked promising because of patriotic sentiment in its favor and because studies done during World War II had documented an authentic problem of widespread wage discrimination. "Women in producing the weapons of war have, in many industries and occupations, demonstrated their ability to turn out the same day's work as do men," Senators Pepper and Morse asserted when they introduced Anderson's bill; employers should not treat them like "second class workmen."^[5] The Women's Bureau representatives had indeed discovered a large war plant where women instructors got sixty cents an hour, whereas the men they were teaching received seventy cents. In the small arms and artillery ammunition plants the bureau representatives visited, entering wage rates were found to be at least ten cents an hour higher for men than for women; in gun manufacturing men began at sixteen cents an hour more. The New York Herald Tribune pointed to the war widows, now the sole support of their families, and urged no further delay of "so just a measure" as the equal pay bill.^[6]

Congress responded apathetically. Mary Norton (D-N.J.), chairman of the House Labor Committee, told Women's Bureau director Frieda Miller that no legislation would be enacted without an active campaign revealing "intense interest" on the part of women's organizations, labor unions, and the administration.^[7] In response, Mary Anderson expanded the equal pay committee she had formed, now called the National Committee on Equal Pay. Labor and women's organizations came on board, and the CIO replied: "[We] are anxious to work with you."^[8]

Not surprisingly, the National Woman's party hung back. Its response to a Supreme Court decision in 1936 on a wage and hour case had revealed its antipathy to labor legislation in general; now, although it declined to oppose this bill overtly, its members complained to congressional backers about several of the bill's features. They objected first to a special bill pertaining only to women rather than mandating equal pay for equal work regardless of sex. But even more, they rejected the bureau as

the law's enforcement agent. As the chairman of the National Advisory Council of the NWP, Nora Stanton Barney, wrote to Senator Claude Pepper: "We do not want women to have any more legislation setting them apart from other workers, and sincerely wish the Women's Bureau did not exist. We certainly do not want it given any more power over the lives of women."^[9] The party feared that, at worst, Anderson's plan would work and Congress, instead of enacting the Equal Rights Amendment, would use equal pay legislation to mollify women.

Equal pay advocates took no pains to conceal this possibility; indeed, they regarded it as a selling point. Elizabeth Magee, general secretary of the National Consumers League, issued a press release observing that the equal pay bill "may lead to the shelving of the proposed Equal Rights Amendment," and Dorothy McAllister, the head of NCDURA, told her committee members that passage of the equal pay bill "would greatly weaken the interest some Senators have in the [Equal Rights] Amendment."^[10]

At the end of October 1945, the Senate Education and Labor Committee held hearings on the bill. Labor unions, including the AFL, offered support, as did the administration in the person of the secretary of labor. (The president said he endorsed the "principle" but no particular bill.)^[11] Speakers emphasized equity, the protection of wage rates for male workers, the needs of widows, and postwar purchasing power to sustain the economy. The BPW and the General Federation of Women's Clubs spoke in favor, also emphasizing their support of the ERA, and the NWP kept mum. No one testified against the bill.^[12]

The committee took seven months to report the bill. It had eliminated the provision against firing women (even Frieda Miller had testified against this provision) and vested enforcement in the secretary of labor. Even so, labor subcommittee chairman James Tunnell (D-Del.) seemed only mildly interested in the bill, and committee members Robert Taft (R-Ohio) and Joseph Ball (R-Mich.), who had strong business constituents and conservative economic principles, opposed it. The measure did have a good friend on the House side however. Mary Norton saw to it that in July the House Labor Committee, which

she chaired, reported a similar bill, without hearings to create delay.^[13]

The bill went no further. Because the Senate committee had taken so long, the bill reached the Senate floor near the close of the session. Robert Taft took to the floor against hasty consideration: "The bill involves a major interference with the freedom of American industry. Certainly it ought not to come up during the last days of the session."^[14] With the assistance of Joe Ball, who leapt to his defense against charges of indifference to women's rights, they scuttled the measure for 1946.

This first defeat undid the bill. The ERA had gone down the previous July, so the chief impetus for the coalition backing equal pay legislation had withered. The wartime contributions of women were beginning to fade from memory, as was the desire to reward those efforts. Sympathetic Congress members continued to introduce the bill, but without an outside lobbying effort the cause was futile.^[15] In subsequent hearings industry lobbyists, emboldened no doubt by the earlier failure, argued that federal legislation was unnecessary and intrusive—a position supported, to the dismay of equal pay advocates, by the AFL. The labor federation had reversed its position in 1947, arguing that collective bargaining was a more effective tool for securing pay equity for women, a position it took despite the fact that many labor unions continued to include dual pay scales in their contracts.^[16]

With the Korean conflict some supporters became hopeful that Congress would use equal pay to encourage women to do war work. Mary Norton, now in the Department of Labor, asked Representative John F. Kennedy (D-Mass.) to introduce an equal pay bill to support defense production. Kennedy acquiesced, as did a number of other House members, but the war did not replicate either the massive production effort of World War II or the labor shortage of that era, and the bill got nowhere. Wayne Morse complained in August 1951 that the "reactionary coalition," supported by the AFL, put the kibosh on the bill.^[17]

Indeed, the AFL now vehemently objected to the possibility that, through the equal pay law, the government might play a

role in job evaluation or setting wage rates. Said one member of its legislative committee:

Private property is the foundation of economic freedom. . . . It has been found desirable to keep decisions on economic matters in the hands of economic organizations, limiting the political to the formulation of objectives and basic principles. Administrative regulation of the economic order limits economic freedom and with increasing scope and degree may destroy it. . . . To attack the problem as an issue of social justice to be cured by legislation is to perpetuate a principle based upon the assumption that women are wards of the state.^[18]

This argument seemed a bit disingenuous in view of the AFL's opposition to the ERA based on the amendment's threat to protective labor laws for women. Laws limiting women's hours of employment or barring women from certain jobs entirely certainly seemed to imply that women were wards of the state. To object to laws protecting women's rates of pay, but not those limiting their hours, lent credence to the NWP's claim that male unionists opposed the ERA for self-interested reasons rather than for the sake of women.

The NWP, itself uninterested in governmental intrusion into business matters, also continued to fight the bill's backers. The animosity between ERA supporters and equal pay advocates broke into the open again in March 1952, at a Women's Bureau conference designed to generate enthusiasm for the measure. Mildred Palmer of the National Woman's party crashed the conference and, during the question period, asked Frieda Miller why the bureau did not support the Equal Rights Amendment if it wished to expedite the matter of equal pay. With "unrestrained hatred," according to Palmer's account, Miller told her she was out of order.^[19]

Effective coalition now seemed less rather than more likely, and the situation deteriorated further when Graham Barden, the new head of the House Education and Labor Committee, made it clear he had no use for the equal pay bill. The next year, 1953, AFL president George Meany affirmed that organization's position: "We feel that in a free competitive economy, the task of establishing and safeguarding the principle as well

as the practice of equal pay to women workers is properly within the province of collective bargaining and not of police action by the government."^[20] The National Association of Manufacturers and the U.S. Chamber of Commerce agreed that government interference was unwarranted,^[21] and Alice Paul, the founder of the National Woman's party and the nation's chief exponent of the Equal Rights Amendment, joined them: "The building up of a new, far reaching system of inspection on the question of equal pay, with power to investigate every business in the United States, administered by a colossal new government agency with vast enforcement powers, would not be helpful to women, as far as I can see."^[22]

The National Committee on Equal Pay (NCEP), which the Women's Bureau tried to resurrect after several years of inactivity, served as a clearinghouse of information. It had no power over its member organizations, many of which differed over the best strategy to pursue. Some members were frankly opposed to legislation and belonged to the group only to monitor its activities. The member organizations that were in accord with the objective of legislation all had many other time-consuming items on their agenda—including opposition to the Equal Rights Amendment, a big drain on energy and resources. Thus, the NCEP could hardly overcome the obstacles against the bill: an array of powerful organizations opposed to it, and a leadership vacuum and political inactivity on the part of the working women who presumably favored it.

The Republicans, elected in 1952, introduced yet another wrinkle. All the proposed bills had followed Anderson's model and covered employers "affecting commerce." Republican representative Frances P. Bolton from Ohio introduced equal pay legislation in January 1954 that would amend the Fair Labor Standards Act to narrow coverage considerably from the other bills and give enforcement to the Wage and Hour Division of the Department of Labor, which had power only to mediate disputes, not to issue "cease and desist" orders. By way of compromise, Bolton later submitted a different bill, which, although still modeled on the FLSA, broadened coverage a bit. To enforce the law, the secretary of labor would have to file suit.^[23]

Advocates of the original bill refused to consider Bolton's ap-

proach, unwilling to foresake coverage for any group of women workers. Bolton retreated and introduced a bill proposing "study" of the problem, while Edith Green (D-Oreg.) went to bat for the original bill. Green reintroduced the blacklist provision for guilty employers but permitted enforcement through the courts.^[24] The Department of Labor, representing the administration, insisted on the Bolton bill, and the NCEP maintained its support for the Green bill. The Women's Bureau, estranged from its traditional consistency by Leopold's appointment, also had little clout within the administration; it could influence neither side.

Meanwhile, support outside Congress was mounting. Equal pay had gone down in 1945, at a time when almost everyone agreed that women should leave the labor force. By the end of the 1950s, however, public policy had taken a new tack: concern now focused on the appropriate use of womanpower, both to fill the needs of businesses seeking white-collar workers and to meet the international challenge posed by the ostensible threat from Moscow—a challenge that highlighted the need to devote more human resources to science. In 1957 the National Manpower Council (NMC), a Columbia University panel funded by the Ford Foundation, published a landmark study entitled Womanpower . A comprehensive look at the experience of women in the labor force, current employment needs, and the implications of both for education, training, and public policy, the NMC analysis called women "essential" and "distinctive" workers.^[25] Attracting women to work had become a matter of national interest.

Moreover, women themselves had indicated that they intended to be a permanent part of the labor force regardless of policy incentives to stay home; now no one could accuse the government of wrecking homes by improving conditions of women's work. The sex segregation of the labor force safeguarded jobs for men, so the government could not be charged with threatening the "breadwinners," and business prosperity indicated that the nation no longer needed to fear the return of the prewar depression and job scarcity. Public opinion polls consistently supported equal pay for equal work for women.^[26]

President Eisenhower was the most prominent new proponent of the equal pay bill. The administration had consistently

favored an equal pay law, and in 1956 Leopold persuaded Eisenhower, via the secretary of labor, to mention it in the State of the Union message. On January 5, 1956, Eisenhower told Congress: "Legislation to apply the principle of equal pay for equal work without discrimination because of sex is a matter of simple justice. I earnestly urge the Congress to move swiftly to implement these needed labor measures."^[27] Women's organizations were encouraged, and the president subsequently included equal pay recommendations in all his budget messages and four of his economic reports to Congress during the rest of his term. But the Women's Bureau did nothing else with these statements.

Important backing came from another source in 1956. Since 1947, the American Federation of Labor had opposed the equal pay bill, insisting that union membership and collective bargaining constituted a preferable route—even though in a number of unionized plants sex-segregated pay scales granted skilled women workers no higher wages than male common laborers. The Congress of Industrial Organizations, however, had steadily endorsed equal pay legislation, and when the two federations merged in 1956 the AFL-CIO adopted the CIO position, swayed by the measure's popularity: both parties had endorsed it, as had the president, and women's organizations were virtually unanimous. The AFL-CIO endorsed the Green bill, not the Bolton, and insisted on an amendment to provide for administrative enforcement by the secretary of labor. Although publicly the organization expressed its concern that employees should not be forced to undergo the expense of legal action, the choice of administrative, rather than judicial, enforcement reflected the fear that unions would also be the target of equal pay suits. Where dual pay scales existed, some women had already sued unions, charging discrimination under collective bargaining agreements and asserting that the unions were not representing them fairly in the bargaining unit, as the law required. The labor federation assumed that the secretary of labor would give unions a more sympathetic hearing than a judge. Its anxiety over this provision meant that the group would not readily compromise on it.^[28]

The AFL-CIO position was typical of the bill's supporters: backing hinged on special considerations. There was contention

even within the administration, with the Commerce Department objecting to coverage broader than the FLSA and the whole notion of a separate bill.^[29] With a Republican administration in power, labor was distrustful of any suggestion of compromise, and the Republicans' business constituents, for their part, did not look kindly at the "harassment" promised by the Green bill.

Powerful enemies on the Hill, especially Graham Barden (D-N.C.), chairman of the House Education and Labor Committee, made the problems in some ways moot. Barden told Green point-blank that he considered the bill "ridiculous" and that he would never pay a woman as much as he paid his male legislative assistant. Others involved in the struggle suggested that the problem with the bill lay in the lack of hard statistical data, but that gap provided only a convenient excuse.^[30] For the last three years of the Eisenhower administration, the only significant action on equal pay legislation was the president's repeated counsel to Congress to enact it.

By the second half of the 1950s, the lack of a committed, sophisticated leadership that could gather convincing data, lobby effectively, and forge a compromise among the disparate elements backing the bill spelled defeat. The National Committee on Equal Pay served merely as an informational conduit; the administration stuck to its guns, as did the major labor organizations; and the Women's Bureau, with ties now principally to professional women rather than to its traditional constituency of labor union women and advocates for women in industry, and unwilling to alienate the Republicans' business constituency, gathered little data on the prevalence of unequal pay scales.

Like the Equal Rights Amendment, in the postwar period equal pay legislation had suffered from the national ambivalence toward women's roles. Introduced in 1945, the legislation was overtly a tribute to women war workers, but concern for reestablishing security in the workplace for returning veterans overwhelmed the desire to achieve either that tribute or real equity for women. Throughout the fifties, as the nation restored its emotional and economic foundations within a conservative social framework, women quietly left the home during the day for the workplace, becoming an indispensable and

unique part of the labor force, no longer in competition with men for jobs but filling an almost completely separated category of white-collar and service work. By the end of the decade, anxiety over working women had subsided, but equal pay proponents, fragmented by diverse goals and political beliefs and lacking effective and appropriate leadership, could not overcome the business opposition united against the bill, now its only serious obstacle. From 1945 to 1960, therefore, women received from Congress virtually no recognition of their contribution to the war effort, their new place in the American economy, or their importance within the electorate. It remained for the White House to cover this political flank and do something for the women.