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9 A Model for Action
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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.

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