Private Employment

The desire to make the civil service a "showcase" reflected in part the presidential commission's belief that private employers would emulate the federal model. But if the federal government intended to take action with regard to sex discrimination in the private sector, the guidelines of enforcement and conse-

quences of noncompliance had to be spelled out more clearly than for the civil service, where the Civil Service Commission could implement a general policy on an ad hoc basis.

Both political and philosophical considerations, however, prevented the commission from seeking to penalize business for sex discrimination. James Roosevelt (D-Calif.) proposed a fair employment practice bill in 1962 that barred discrimination based on sex as well as on race, but the NAACP and the Departments of Justice and Labor objected to including women in the bill. The House Committee on Education and Labor omitted the sex provision on the motion of Edith Green (D-Oreg.) in order to give the president's commission time to study the best methods of achieving employment equity for women. Neither the PCSW's Committee on Private Employment nor the commission as a whole believed that coercive measures would win acceptance from either the business community or Congress. In addition, because no sanctions against sex bias obtained within the federal government, it would be hard to defend punitive measures against private business for the same offense. More to the point, although they held up equal treatment as ideal, both the Committee on Private Employment and the commission, reflecting the beliefs of most Americans, regarded differential treatment in employment on the basis of sex warranted under some circumstances because of women's familial obligations.^[23]

By the time the commission began to consider the attitude of business toward women, the administration had already taken executive action with respect to racial discrimination in private employment. Shortly after assuming office, John Kennedy had issued an executive order (EO 10925) establishing the President's Committee on Equal Employment Opportunity. The order required federal contractors to agree not to discriminate on the basis of "race, creed, color or national origin" and to take affirmative action to ensure equal treatment. A second executive order, issued in June 1963, extended the initial provision to federally assisted programs receiving grants, loans, insurance, or guarantees. The possibility of including "sex" in EO 10925 had been considered, but administration drafters concluded that racial discrimination constituted enough of a burden without adding other conditions,

such as sex, age, or handicap. Moreover, ever since World War II a widespread social movement to end racial discrimination had been pressuring the government and seeking to change public attitudes—and with some success: race had become less and less a legitimate criterion for discrimination. Neither a social movement nor a coherent feminist philosophy existed to support the inclusion of a prohibition on sex-based discrimination in an executive order (or a bill, also considered) to ban racial bias in private employment.^[24]

The president's commission considered this issue a fertile field for policy initiatives, and, although sex discrimination had been omitted from the first executive order, the commission continued to view the relationship between the federal government and its contractors as the most accessible vehicle for bringing about some change in the private sector. The president could prohibit sex discrimination merely by fiat, and an executive order pertaining to contractors would protect a significant number of workers. In 1960, the federal government bought about 20 percent of all goods and services produced in the country, and the one hundred largest defense contractors employed ten million workers.^[25]

The question for the Committee on Private Employment to resolve centered on the kind of executive order to recommend. Committee member Caroline Davis, director of the Women's Division of the United Automobile Workers, strongly urged that the president ban discrimination based on sex and include penalties and machinery for enforcement. She had supported the addition of the word sex to EO 10925, and because of her defeat on this issue, she said, she had failed to win a prohibition against sex discrimination in the automobile industry contracts of 1961.^[26]

The Private Employment Committee refused to go along with her proposal, though. As committee chairman Richard Lester explained, "There are very good grounds, apparently, for discrimination against women in connection with training, promotion and upgrading in certain lines." Because women differed from men in motivation and career aspirations, and usually interrupted their work lives to raise families, the government, Lester contended, would find it difficult "to determine

the line between justified and unjustified selection of males over against females in training and promotion." Moreover, said Lester, because illegitimate sex discrimination could not at that point be specified, any executive order prohibiting it would have to depend for enforcement on "moral suasion and company consultation." The experience gained using these techniques would, he argued, permit the formulation of stronger measures later if they proved necessary.^[27]

The administration stepped in to quell the dispute. The new secretary of labor, Willard Wirtz, refused to endorse an executive order that relied on more than education and moral suasion for its enforcement. At its meeting one week later, the Committee on Private Employment, in keeping with the administration's wishes, passed a recommendation for a contract clause to be specified in an executive order: "It is the policy of the Government that there should be no discrimination against women in regard to hiring, training or promotion in employment by reason of their sex. In the performance of this contract, the contractor is requested to use his best efforts to comply with this policy in order to assure that equal employment practices for women are observed." After strenuous objections from Caroline Davis and Muriel Ferris, Senator Philip Hart's legislative assistant, the committee compromised and changed is requested to to shall .^[28]

In its report, the committee recounted its reasons for not recommending the amendment of EO 10925 and for preferring persuasion to compulsion. "The consensus," the report explained, "was that the nature of discrimination on the basis of sex and the reasons for it are so different [from race] that a separate program is necessary to eliminate barriers to the employment and advancement of women." Volunteerism would permit business managers to demonstrate that they could act without coercion, and a noncoercive program would therefore elicit more support from industry, Congress, and other groups, the committee asserted. Information could be collected "in a cooperative atmosphere" that would permit distinguishing "differentiation that is justifiable on the basis of sex from differentiation that cannot be justified." In cases of willful noncompliance, firms could conceivably be barred from federal contracts, and if more

definite penalities turned out to be necessary they could be added later.^[29] Only Caroline Ware dissented, citing experience with voluntary compliance and cases of racial discrimination.^[30]

The commission would not accept davis's proposal to add the word sex to EO 10925, which it believed meant ignoring the impact of family responsibilities on women workers and their employers, nor could it envision forcing private employers to share with women the costs of taking time out from work to raise families. Thus, despite initial protestations of the commission's planners that "prevailing institutions and work practices . . . largely shaped by and for men"^[31] limited women's chances, the commission did not propose to forbid sex discrimination. Unable to reconcile the conflict between pursuit of equality for women and endorsement of the traditional obligations of women, the commission suggested that women's interrupted work patterns might justify exclusion from on-the-job development programs—implying that women would have to continue to pay the price of lost promotions and missed wage increases for fulfilling what the commission deemed to be their appropriate roles. Further, PCSW personnel viewed with sympathy the objections of civil servants and business people who did not want to be saddled with additional burdens in getting or offering contracts for government supplies. Finally, the commission did not want to place the White House in a position where it would refuse to comply with a PCSW recommendation. The commission had been designed to enhance the president's reputation, not embarrass him. Given the nature of the dispute, political considerations dictated leaving the recommendation vague. Interested in achieving widespread endorsement of its views, the commission, in this instance as in others, attempted to arrive at positions that would not unduly inconvenience its constituents, even at the expense of working women's opportunities. It thus wound up in large measure mirroring rather than advancing the state of national opinion.^[32]

Although hardly a battle cry, the commission's statement denouncing discrimination in employment still advanced the cause of wider opportunities for women. In its report the commission called attention to the number of women employed (one worker in every three was female) and the need for their skills and their

income.^[33] It also decried women's low wages and countered the myths, such as increased absenteeism, that employers offered to justify discrimination. "Reluctance to consider women applicants on their merits," the commission declared, "results in underutilization of capacities that the economy needs and stunts the development of higher skills."^[34] The commission enunciated for the first time a federal policy censuring discrimination against women in employment by the federal government itself, by the private sector, and by state governments receiving federal grants. Although the limits to discrimination were not clearly drawn, at least, according to the commission, there ought to be some limits.^[35]