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]