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9 A Model for Action
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A Model for Action

After the conclusion of the President's Commission on the Status of Women, female activists within the federal government and the state commissions strove to improve opportunities for women, using the commission's agenda as a guide. The transfer of power from John Kennedy to Lyndon Johnson, who was strongly sensitive to the exigencies of political patronage, engendered new attention for appointments of women; yet Johnson strongly supported the plan of the president's commission, going so far as to mute his own endorsement of the Equal Rights Amendment. As the attempt to find a case suitable for Supreme Court adjudication languished, the success of a new civil rights bill soon presented ERA proponents with an unexpected opportunity to take a swipe at the recommendations; the result of their action was to give women new and unprecedented protection against employment discrimination. Official resistance to the new law, however, bred resentment among women nationwide—and as the number of women aware of women's equity issues grew, so did the seeds of a grassroots movement.

Lyndon Johnson

Following John Kennedy's assassination, Lyndon Johnson came into office with several goals. Painfully aware of Kennedy's popularity, Johnson sought to prove himself faithful to the objectives of his predecessor and win equal affection. A Southerner, but now distanced from his Texas constituency, Johnson wanted to display his commitment to equalizing treatment for blacks, to eliminating poverty in America, and to bringing the war in Viet-


nam to a successful conclusion. In pursuit of these ends, Johnson presided over liberalism's "greatest triumphs and sharpest defeats," as historian William Chafe characterized the events of Johnson's tenure. Under the new president's guidance, Congress enacted path-breaking civil rights laws and produced legislation providing federal aid to education, housing, medicare, mental health programs, urban mass transit, preschool for underprivileged children, employment and training programs, environmental and consumer programs. Johnson's "War on Poverty" lifted the incomes of millions of American families.[1]

Kennedy's assassination and the murders of black leaders Medgar Evers in 1963 and Malcolm X in 1965, together with Johnson's encouragement of civil rights legislation and his pursuit of the Vietnam war, all fueled the social protest in the 1960s. In 1962, a nascent student movement emerged seeking to quell militarism and to join with the civil rights movement in the cause of racial equality; by 1968, Students for a Democratic Society counted one hundred thousand members. Peaceful demonstration proved an inadequate force for halting the war, however, and campuses exploded in protest in 1968. Meanwhile, urban ghettos were beset by waves of violence, and in the spring of 1968 civil rights leader Martin Luther King, Jr., and Robert F. Kennedy, who was running in the Democratic primaries as a peace candidate, were both murdered.

Although the national community seemed truly to be coming apart, by the mid-1970s the eruptions of angry protest had abated. The antiwar movement was defused by troop reductions and the elimination of the draft. Black leaders turned from street demonstrations to more traditional politics. Yet out of the turmoil of the 1960s, from both the government's commitment to moderate, controlled social change and the New Left's objective of radical social reorganization, was born a vital women's movement that endured for another decade.


The policy initiatives of the Kennedy years had taken place against a backdrop of widening activity by women, continuing the trend that had intensified after World War II. Between


1960 and 1965 the number of bachelor's and first professional degrees earned by women increased 57 percent, compared with only a 25 percent increase for men. By 1968 women were earning about one-third of all master's degrees and 13 percent of doctorates. The more educated the woman, the more likely she was to work outside the home, and by 1968 women represented 37 percent of the labor force, up 3 percent since 1960. The increase for married women was even more significant: in 1960, 30.6 percent of married women worked; by 1968, that figure had grown to 37 percent.[2]

What these figures did not reveal, however, was that, relative to white men, white women had declined in economic position throughout the postwar period. Of full-time workers in 1966, women earned only 58.2 percent of the income of men, down from 63.3 percent in 1956. Women with college degrees, a growing proportion of women workers, were still earning less than men with only high school educations. As more and more college-educated women entered the labor market, they encountered opportunities far narrower than their male peers enjoyed.[3]

Working women did not suffer only economic disadvantages; they also paid an emotional price for joining the workforce. Throughout the fifteen-year postwar period, publications both popular and scholarly suggested that American women who assumed nonconventional roles were neglecting their families or losing their femininity. The country continued to prefer that women not openly challenge men professionally or intellectually. By the early 1960s, journalists were describing a "prevailing malaise" among women as a result of the conflict between women's achievements and traditional norms. Marya Mannes protested in the New York Times Magazine that intellectual women were victimized because American men were uncomfortable with them, and an essay in the Commonweal lamented that an honest, intelligent woman had inevitably to become a social rebel because American society did not really approve of forceful, thinking women. In October 1962, the editors of Harper's published a special supplement in recognition of the "important changes" that had taken place in the roles of women. In this issue, such authors as psychologist Bruno Bettelheim argued that women who had been educated


like men experienced frustration when confronted after graduation by limitations for intellectual expression. Harper's called the nascent disquiet "crypto-feminism."[4]

The discussion in the popular press of the plight of the American woman culminated in February 1963 in the publication of The Feminine Mystique by Betty Friedan. In evaluating information garnered from a questionnaire sent in 1957 to her 1942 classmates at Smith College, Friedan had detected a "problem that has no name," which displayed itself in the breakdown of the mental and physical health of college-educated homemakers who were living through their husbands and children. Friedan argued that women needed creative work of their own and that women's life plans had to integrate marriage and motherhood with independent work in order for them to be healthy individuals.[5]

The "problem that has no name," "malaise," and "crypto-feminism" all referred to the strain between customary expectations for women and the changing circumstances of American life. Greater numbers of highly educated women, believing it to be best for their families if they did not work for pay, found themselves stultified by the lack of intellectually stimulating outlets while they were home. Then they faced three potentially useful decades after their children had grown, but often lacked skills and experience to permit an easy transition to the workplace. Those women with children who were forced to work by the exigencies of a consumer society discovered severely circumscribed possibilities for employment and advancement and in addition suffered criticism for leaving their families ostensibly without proper care.[6]

Yet women did not, in the early 1960s, organize themselves to alleviate such difficulties. As Jo Freeman has pointed out, "Social strain does not create social movements; it only creates the potential for movements." The "social strain" described had in fact characterized the entire postwar period, leading finally to the call for a national commission on women. That commission's report, American Women, now served as a focus of discussion for the state commissions set up to emulate the national group, a nationwide system of commissions on women that, as


Freeman described it, created a "climate of expectations" for potential action.[7]

American Women followed the appearance of Friedan's book by only six months, and the reaction to it, in both demand for copies and continuing formation of state commissions, indicated that the chord struck by these publications had wide reverberations. By October 1964 the government had distributed eighty-three thousand copies of American Women (which had also been translated into three languages: Japanese, Swedish, and Italian), and in 1965 Charles Scribner's Sons published a commercial version edited by Margaret Mead.[8]

The Citizens' Advisory Council and the Interdepartmental Committee on the Status of Women

President Johnson was eager to capitalize on the good will engendered by the commission. As vice-president, Johnson had made known his strong support of the commission's objectives and had often attended commission functions; following the group's first meeting it was Mrs. Johnson, not Jacqueline Kennedy, who hosted the reception for the assembled representatives. Shortly after Johnson took over, Elizabeth Carpenter, Mrs. Johnson's press secretary, called Esther Peterson to ask her advice on how to win for the new president the support of the women's organizations that had so enthusiastically backed the president's commission. Peterson replied that Johnson should appoint commission member Margaret Hickey to chair the Citizens' Advisory Council on the Status of Women (CACSW)—a decision John Kennedy already made but not implemented—and that this appointment would signal his intention to stand behind the commission's work. Johnson dutifully followed the advice, and both he and Mrs. Johnson attended the council's first meeting. In Women's Bureau releases, Esther Peterson moved quickly to identify Johnson with the Kennedy policy initiatives on women.[9]

The Interdepartmental Committee on the Status of Women


(ICSW) and the CACSW were continuations of the president's commission not only in spirit but also in personnel. The executive order establishing the ICSW and the CACSW placed in the former group all the cabinet members who had been on the president's commission, plus the secretaries of state and defense. John Kennedy named to the CACSW all the nongovernment members of the presidential commission, adding Eleanor Roosevelt's daughter, Anna Halsted, and the president of the Trenton Trust Company, Mary Roebling. The support of the two continuing groups, with membership almost identical to that of the president's commission, signified that there would be no sharp departure in the Johnson administration from the agenda described in the commission report.[10]

The new president chose, however, to highlight one particular recommendation in order to differentiate himself from his predecessor and to win some new and exciting publicity before the 1964 election. His decision provided a momentary return to the modus operandi of Kennedy's predecessors. In January 1964, Lyndon Johnson declared to a Washington Post reporter that he intended to appoint fifty women to significant policy-making positions within thirty days; the story appeared on the front page. Johnson, a longtime party man, endorsed the notion that the appointments were good politics, and he responded to the suggestions of party women with whom he had long been associated—and whose counsel, to their delight and relief, was once again welcome in the White House. The president's closest female adviser, Elizabeth Carpenter, originally a journalist, saw good public relations in the campaign to appoint women and encouraged the president to do so.[11]

Indeed, Johnson's actions led to a sharp increase in the number of women serving in Senate-confirmed positions, with ten such appointments in his first thirteen months in office—excluding local customs office jobs, the same number as Kennedy had named during his whole three years. Of these ten, six represented "firsts" for women, compared to four for Kennedy. During the balance of his term, Johnson appointed another seventeen women. Of the twenty-seven total appointments, sixteen were firsts, and the number of women serving in the administration rose from thirty in 1963 to fifty-two in 1968.


Although Johnson did not name a woman to his cabinet, he was not criticized for this omission—an indication that his overall record, with due attention given to breaking new ground, contented Democratic women. Moreover, thanks to Liz Carpenter, Johnson accompanied his appointments with the fanfare political women thought appropriate. Yet unlike Truman and Eisenhower, Johnson also took an interest in the civil service efforts the presidential commission had instigated. Rapid gains in high-level jobs for women took place at the beginning of 1964.[12] Party women were very pleased, and the journalist Isabelle Shelton recalled more than a decade later: "There's never been anything like it—before or since."[13]

But Johnson's burst of interest in appointments created some unforeseen consequences that affected the status of women more significantly than the mere numbers of nominees. By pledging a larger role for women in his administration, Johnson raised expectations that he then failed to fulfill. The appointments campaign ended with the 1964 presidential election, and by March 1965 Margaret Price complained once again that women were dissatisfied with the number of staff appointments. This time the displeasure spread through the state commissions, gaining attention from many more women—women organized and focused on the status of women—than ever before.

A second outcome of Johnson's appointments concerned the Women's Bureau. The president designated Esther Peterson to be his special assistant on consumer affairs, the single highest post to which he named a woman. (India Edwards and Liz Carpenter both observed the irony in giving this post to Peterson, who already was the ranking female member of the administration as assistant secretary of labor, a job she retained. Both women pointed out that Johnson would be able to name more women to important jobs if Peterson did not get them all. In fact, Peterson became one of the few Kennedy appointees Johnson continued to trust.) With the new appointment, Peterson decided to relinquish the directorship of the Women's Bureau, the least prestigious of the three jobs she held, and Johnson replaced her with Mary Dublin Keyserling, an economist active in Democratic politics.

Keyserling was not pleased by the new position of concilia-


tion the president's commission had crafted.[14] A longtime worker with the National Consumers League, Keyserling maintained a firm commitment to its philosophy that working women required protection, a point of view she had expressed emphatically while serving on the Committee on Protective Labor Legislation of the commission. Secretary of Labor Willard Wirtz shared Keyserling's view, as expressed in the president's commission report, that hours laws for women should be expanded until they could be replaced by laws requiring premium pay for overtime. As Peterson and Catherine East, formerly the technical secretary of the Committee on Federal Employment and now the executive secretary of the Citizens' Advisory Council on the Status of Women, moved away from the idea of maintaining laws that protected women and not men, they came into increasing conflict with Keyserling and Wirtz.[15]

Title VII

The issue became of great moment with the consideration of the 1964 omnibus civil rights bill. Introduced by Representative Emanuel Celler (D-N.Y.) in June 1963, the comprehensive civil rights bill strengthened voting rights and access to public education for black Americans and prohibited discrimination based on race in places of public accommodation, in federally assisted programs, and in employment. The House Judiciary Committee held hearings on the bill for twenty-two days, reporting it favorably on November 20, 1963, two days before President Kennedy was assassinated. Sex discrimination had not been mentioned.[16]

The National Woman's party reacted to the committee report with a resolution, passed in December, that bemoaned the fact that the bill "would not even give protection against discrimination because of 'race, color, religion, or national origin,' to a White Woman, a Woman of the Christian Religion, or a Woman of United States Origin ." With this statement, the NWP began its campaign to amend the bill to include a prohibition against sex discrimination.[17]

Although the party maintained that the ERA constituted all the protection women needed, given that such an amendment


did not exist, party members had always sought to have women included in fair employment practices legislation and executive orders applying to minorities. The NWP did not initiate such legislation, because its largely privileged and conservative membership generally believed that the government should not intervene in private enterprise. However, if the federal government insisted on offering protection to black workers, the NWP did not want women placed at a relative disadvantage by being denied similar assistance.[18]

The party quickly turned to a powerful ally, Representative Howard Smith (D-Va.), the chairman of the House Rules Committee and a longtime proponent of the Equal Rights Amendment. An archconservative Southerner, Smith, in common with many NWP members, opposed the whole idea of the bill. If the addition of sex to Title VII, the employment title of the pending civil rights statute, were to result in the bill's demise, Smith, and several NWP members, would be satisfied. Yet if the bill were to pass, Smith agreed with the NWP that it had to include women in its scope: otherwise white women would lack an advantage granted to black men. In addition to seeking Smith's backing, the NWP also approached women members of Congress. The party met resistance, however, either because the women representatives perceived a lack of support from other members or because they had promised the administration not to offer amendments on the floor. Finally Representatives Martha Griffiths (D-Mich.) and Katharine St. George (R-N.Y.), both strong supporters of the ERA, decided to back the amendment but to let Howard Smith introduce it, pointing out that his endorsement would bring many votes they themselves could not acquire. During the hearings on the rule, Smith quizzed Celler about the omission of sex as a prohibited basis for discrimination and warned that he intended to offer an amendment to eliminate the gap. On January 26, White House correspondent May Craig raised the issue with Smith on the television show "Meet the Press," and Smith agreed again to consider it.[19]

The Women's Bureau coalition opposed adding sex as a prohibited basis of discrimination on two grounds. For one thing, the President's Commission on the Status of Women had asserted that race and sex discrimination were best treated sepa-


rately, and the coalition continued to endorse this view. Banning sex discrimination in the same way as racial bias threatened protective labor laws. Then, like most liberal reformers, the members of the coalition believed that the fight against racism had prior claim. The year 1964 was, once again, the "Negro's hour," and many liberal women believed that the issue of women's rights had been raised merely to kill the bill with another controversial clause. As before, the two factions were at loggerheads.

On February 8, 1964, as he had suggested he would, Howard Smith introduced an amendment to add the word sex to Title VII of the pending civil rights bill. Assuring the House that he was "very serious" about the proposal, Smith insisted that it could not do the measure any harm and that it might in fact improve it. After he discussed the issue of discrimination against women in employment, however, Smith read excerpts, with an excess of chivalry, from a letter he had received complaining that some women were cheated out of husbands because there were too few men to go around. He warned his colleagues to take note of such "real grievances." Celler responded with similar jocularity, pointing out that he usually had the last two words in his household of women, and they were "yes, dear." Other members found the exchange highly amusing. Celler then offered serious objections to the amendment, citing first a Department of Labor letter quoting Esther Peterson, who reiterated the position of the president's commission that sex discrimination was best treated separately and who argued that the addition of sex to Title VII would "not be to the best advantage of women at this time." Celler contended that the provision would reproduce the language of the pending Equal Rights Amendment, and he opposed it on that basis, referring to alimony, compulsory military service for women, custody, and rape laws—none of them relevant to the proposal at hand, which dealt only with employment. The germane point he raised concerned protective labor laws: Celler warned that enacting the proposal under discussion might result in the nullification of state legislation regulating hours and conditions of women's work.[20]

After Celler and Smith finished, all but one of the twelve women members of the House rose ("suddenly," according to


the New York Times ) to speak in favor of the amendment. Martha Griffiths, prepared for the occasion, pointed out that the laughter surrounding the introduction of the amendment exposed the second-class citizenship of American women. Her concern, she said, was that the bill as written would leave white women with no protection at all, because black women would have a cause of action against employers who hired only white men, but white women would not. She dismissed the argument concerning labor legislation; the main function of such laws, she said, had been to protect men's rights to better-paying jobs. But she suggested that a clause to save protective laws would be feasible if that were the price of labor support. Griffiths concluded by declaring that a vote against the amendment by a white man was a vote against his wife, his widow, his daughter, and his sister.[21]

The one woman legislator who spoke against the amendment was Edith Green, former member of the president's commission, who risked, she said, being deemed an "Aunt Jane." Nevertheless, she argued, discrimination against blacks was more severe than against women, and she could not support an amendment that would jeopardize the bill as a whole. Green further noted that not one organization had submitted testimony in favor of this change to the committees considering it. Later in the debate she voiced the argument that biological differences between men and women would spell trouble for employers forced to hire women. Despite Green's protest, however, after a two-hour discussion the coalition of women legislators in favor of equality for women, Republicans in sympathy with the ERA, and opponents of civil rights legislation seeking to block passage of the bill added sex discrimination to the ban in the pending legislation by a vote of 168 to 133. Two days later the House passed the entire bill 290 to 130. All the men but one who had spoken in favor of the sex amendment voted against the bill.[22]

Predictably, response to the sex provision was mixed. The National Woman's party rejoiced, as did the congresswomen who had supported the proposal. The Women's Division of the United Automobile Workers, which had always favored compulsory measures to eliminate sex discrimination, also applauded.


Esther Peterson, however, expressed fear that the amendment might hurt the bill's chances in the Senate and insisted that, in any case, discrimination based on sex warranted separate treatment.[23] A Washington Post editorial facetiously concluded that the vote made it "pretty plain . . . who's head of the House up there on the Hill."[24]

The newly formed Citizens' Advisory Council on the Status of Women held its first meeting two days after the House vote and, at the request of the Justice Department, made no statement. The CACSW had a commitment to implement the presidential commission's recommendations opposing such a law, but Assistant Attorney General Burke Marshall told the council that the bill's passage represented the "most important thing" and that employment opportunity for women was "a side matter," regardless of commission proposals. According to Marshall, the administration was indifferent as to whether the bill passed with the sex amendment or without it; its only concern was to decide in which form the bill's chances were best. Dorothy Height, the president of the National Council of Negro Women, spoke of a two-part dilemma: she feared on the one hand that the inclusion of sex would weaken the administration of the bill with respect to race, which clearly came first for her; but on the other she also feared that any discussion about the ill effects of the sex amendment might weaken the support for the bill as a whole, by providing an excuse for someone to vote against it. Marshall agreed, and asked the CACSW to take no position. The council readily assented, without even discussing the bill's implications for women. Because it would not meet again until the fall, the council thus played no role in the enactment of legislation prohibiting sex discrimination in employment.[25]

Eager to avoid a conference on the bill, the White House decided to seek a Senate vote on the measure exactly as it had passed the House, including the sex proviso. The women in the House of Representatives lobbied among the senators for the amendment, and Pauli Murray, as a black woman sensitive to the problems of both racial and sex-based discrimination and the dynamic between them, circulated a memorandum that maintained that the omission of sex would weaken the civil rights bill by once again dividing the interests of oppressed


groups in the society and by neglecting the problems of black women. In support of her argument, Murray, then on the faculty of Yale Law School, quoted at length from the documents of the president's commission. Ironically, then, the discussion by the commission, which had not recommended fair employment legislation for women, of the problem of discrimination against women, together with its inclusion of dissenting opinions in its publications, furthered the cause of the new bill.[26]

The National Woman's party continued to play a major role in the controversy, forming a special emergency committee to watch over the sex provision. When Senator Everett Dirksen spoke against it, the NWP asked ERA supporter Margaret Chase Smith, the only female Republican senator, to intervene. The Illinois BPW organized an intensive lobbying campaign directed at Dirksen, who finally acquiesced. Although the attempt to have the Senate pass the House measure without any amendment did not succeed, on June 17 the Senate did endorse a substitute bill, with the sex discrimination clause included, by a vote of seventy-six to eighteen. Two weeks later, on July 2, 1964, the House adopted the Senate bill with more than two-thirds voting in favor. Lyndon Johnson signed the measure into law the same day.[27]

Thus, by 1964 a situation unique in the postwar period prevailed: in the absence of a widespread women's movement, a federal law had been passed that prohibited sex discrimination in employment, thanks to ERA advocates who took advantage of both the administration's eagerness to protect the welfare of black citizens and the desire of Southern legislators to thwart that effort. Two federal advisory groups and a national network of commissions on women, all the work of the Women's Bureau coalition, existed for the purpose of examining the status of women in the context of a stated federal policy of equality rendered first by the president's commission and now by Congress as well.

This combination of partial successes on the part of both the Women's Bureau coalition and the proponents of the ERA in the early sixties led to raised expectations and tools with which to organize. An atmosphere now obtained in which the discontent, born of the disjuncture among the ideals of womanhood,


the changing conditions of women's lives, and the unrealized promise of equality, could find constructive expression. The unforeseen backlash that greeted the new sex discrimination law proved to be the catalyst for action.

Acting on the PCSW Agenda

The President's Commission on the Status of Women had not predicted or advocated so sweeping a legal measure as Title VII of the 1964 Civil Rights Act, and at the beginning its heirs preferred to ignore it and concentrate on their more moderate agenda. As a result of PCSW recommendations, civil service health benefits were equalized, the Departments of State and Defense revised regulations on dependency allowances, and the Department of Labor amended rules for eligibility to federal apprenticeship programs to prohibit sex bias. Congress also raised the income level for tax deductions for childcare. In 1966 the Department of Health, Education, and Welfare inaugurated a policy of supplying birth control information and devices on request. Federal funds supported pilot programs in the counseling of girls and mature women. Amendments to the Fair Labor Standards Act left only 5.4 million women and 6 million men uncovered. As of November 1966, more than $3 million had been found owing in equal pay violations and the secretary of labor had brought thirty cases to court.[28]

Also in keeping with the position of the PCSW, the Johnson administration did not support the ERA, even though Lyndon Johnson had as a senator endorsed the amendment. National Woman's party members had believed that his accession to the presidency presaged a favorable change in White House policy, but Johnson could not take over for Kennedy and immediately disown the presidential commission's recommendation on so crucial a matter. He publicly backed the Fourteenth Amendment strategy the commission had ultimately proposed. In December 1963, Peterson drafted a position statement for White House letters that announced: "The President is impressed by the Commission's position and believes that this approach should be fully explored before considering a new constitu-


tional amendment on this subject."[29] To the dissatisfaction of ERA proponents, the White House followed her line. Amendment adherents were further distressed when Johnson saw to it that the 1964 Democratic party platform contained no reference to the ERA. Emma Guffey Miller wrote bitterly to Johnson, whom she admired intensely:

As one who has grown old in the service of the Democratic Party may I tell you . . . of the deep disappointment of many thousands of Democratic women like myself who question the right of Mrs. Esther Peterson to assume the leadership of the Democratic women and dictate the womans [sic ] plank in our 1964 platform. . . . Now [it] omits the Equal Rights plank for women, a plank which has been adopted by our party for two decades. This is not progress, Mr. President, but retrogression.[30]

Other support for the amendment rapidly declined. After 1964 the Senate Judiciary Committee ceased reporting the amendment out, and in 1968 the Republicans dropped the amendment from their platform as well. Many members of Congress responded to letters on the ERA by informing constituents of the PCSW plan for constitutional equality.[31]

In 1965 a case finally appeared that looked as though it might yield the Supreme Court interpretation the commission had sought and result in unity with ERA adherents. The hope proved short-lived. Black residents, both men and women, of Lowndes County, Alabama, represented by the American Civil Liberties Union (ACLU), filed a suit in federal district court charging that methods of jury selection in Lowndes County contravened the Fourteenth Amendment in excluding blacks by practice and women by state law. Mary Eastwood, Pauli Murray, Marguerite Rawalt, and Catherine East, all connected by their association on the president's commission, worked together to obtain amicus briefs from various women's organizations, and the Justice Department intervened at Esther Peterson's request. Pauli Murray helped draft the ACLU brief, looking forward to Supreme Court review. When the federal district court ruled in favor of the plaintiffs, however, the state of Alabama did not appeal.[32] Although the Citizens' Advisory Council on the Status of Women declared the district court


decision a "landmark victory for women's rights,"[33] the absence of a Supreme Court ruling made the event inconclusive. Proponents of the PCSW position continued to seek a Supreme Court declaration, but to no avail.

At the same time, because of the President's Commission on the Status of Women, hundreds of women and men were involved in state commissions actively fighting on local fronts for women's rights. The CACSW devoted the major part of its attention to monitoring programs of women's organizations and state commissions in fulfillment of the presidential commission's agenda for women.[34] Their activity brought results and, concomitantly, an expectation of further change. In the two and a half years after the commission's report, six states enacted minimum wage laws that applied to both men and women, and nine more states extended previously existing minimum wage laws for women to cover men as well. Eleven states took action to make hours laws for women more flexible, three repealed such laws, and six adopted laws providing for overtime pay for work in excess of a certain number of hours. Nine states enacted equal pay laws, bringing to thirty-five the number of states with some equal pay protection. Spurred by local groups and federal grants, homemaker services in local communities burgeoned. Many states took action to amend various laws that restrained the rights of women to operate as freely as men. Four states modified discriminatory jury service laws, three amended statutes limiting a married woman's right to dispose of her property, and several states strengthened child support laws or changed laws that prescribed one legal marriage age for men and another for women. Every year state commissions and women's organizations held conferences, published literature, created pilot programs in cooperation with state and local governments, conducted studies, lobbied for state and federal legislation, trained volunteers, operated day-care centers and homemaker programs, ran courses, and developed audiovisual materials for use by educators—all in the attempt to further the goals established by the president's commission. Not since World War II had women's issues received so much attention.[35]

The scions of the PCSW brought all these activists together. In 1964, in order to establish ties among the state groups, the


CACSW and the interdepartmental Committee on the Status of Women began inviting representatives of state commissions annually to Washington for national conferences and publishing written reports of the proceedings. At the first such meeting, eighty-three representatives of commissions in thirty-one states discussed issues of equal pay, minimum wage laws, day-care facilities, equality in public employment, educational and counseling programs for women, and derisive media treatment. By 1965 the conference had grown to more than four hundred participants from forty-four states, with eleven workshops addressing legal status, Title VII, vocational guidance, educational and employment opportunities, community services, consumer education, labor standards, income maintenance, and women in public life, as well as the financing and management of state commissions. Administration support for their efforts showed in the attendance of the president, cabinet members, and other federal officials. By now, the participants in the state commissions had combined into a national watchdog agency on women's rights; they proceeded to turn their attention to the implementation of Title VII.[36]

The ICSW and the CACSW intended to have the state commissions follow their lead on Title VII and protective labor legislation—but their own position was not entirely clear. A subcommittee of the ICSW, composed of Evelyn Harrison, deputy for Civil Service Commission chair John Macy, Mary East-wood, from the Justice Department, and Mary Keyserling, acting as the deputy of Secretary of Labor Willard Wirtz, set to work formulating a position.[37] The subcommittee could not, however, reach a consensus on how the newly formed Equal Employment Opportunity Commission (EEOC) should construe the effect of Title VII on state laws. Eastwood, who had been the technical secretary of the PCSW Committee on Civil and Political Rights and who had written the attorney general's opinion in 1962 permitting John Kennedy to ban sex discrimination in the civil service, had become convinced that protective labor laws hampered women's opportunities, and she observed that more and more state commissions had arrived at the same conclusion. The Civil Service Commission had itself ruled that women federal workers were sufficiently protected by regula-


tions to be exempted from coverage by state laws pertaining to women's employment. Harrison and Eastwood recommended that in the case of a conflict between state laws and Title VII, the state laws should be ruled inoperative. Mary Keyserling, however, continued to be committed to the traditional posture that women needed special treatment. She contended simply that no conflict existed between Title VII and state labor laws for women. The subcommittee therefore drew up two position papers for ICSW chairman Secretary of Labor Willard Wirtz to consider.[38]

For her part, Assistant Secretary of Labor Esther Peterson was ready to concede that protective labor laws had had their day and that the Department of Labor should now move ahead to a single standard, a standard she had been ready to adopt even for the president's commission. Peterson suggested that most problems could be solved by extending protective laws to men or, where the work was of an especially heavy nature, by permitting exceptions under the "bona fide occupational qualification" provision. While Peterson admitted that the prohibition of sex discrimination in employment came before she and many others anticipated it would, it represented, to her, a "great opportunity." She proposed that the EEOC adopt the principle of a single standard and consider each law on a case-by-case basis.

Peterson, however, had moved beyond her former constituency of labor unions and traditional women's organizations, and the Department of Labor did not follow her recommendation.[39] Rather, the consensus of the Women's Bureau coalition favored retention of the laws. Yielding to the advice of Mary Keyserling and many labor union representatives, Willard Wirtz wrote to EEOC chairman Franklin D. Roosevelt, Jr., that Title VII did not require "a general invalidation" of protective laws, many of which, he counseled, were useful and reconcilable with the objectives of Title VII. "In general," he advised Roosevelt, "the Department believes that the Commission should follow a policy of protecting and preserving these laws wherever possible and practicable."[40] Women's organizations, labor unions, religious groups, and civil liberties organizations, including the AFL-CIO, expressed similar views to the EEOC. The CACSW, unable to reach a firm consensus among its mem-


bers, merely issued a statement upholding the president's commission position on protective laws, while glossing over the key issue of Title VII's impact.[41]

The EEOC willingly followed the advice of the Women's Bureau coalition and the Department of Labor. At the 1965 meeting of state commissions on women, hosted in July by the ICSW and the CACSW, Roosevelt assured the participants that the commission would move "with great care" regarding protective labor laws. The commission did not, Roosevelt explained, see "any clear Congressional intent to overturn all of these laws."[42]

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.


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