The Equal Employment Opportunity Commission initially gave very low priority to enforcing Title VII's prohibition of sex discrimination in employment. This reluctance to enforce the law precipitated an upsurge in women's rights activism, including the founding of the National Organization for Women by Murray, Betty Friedan, and others. Murray's remarks to the National Council on Women, especially her call for a women's equivalent to the March on Washington, were reported in the national press. The founding of NOW and Murray's speech to the National Council of Women served as a warning that the EEOC's foot-dragging on sex discrimination was unacceptable to women and that women would organize and use their political power to insist on better enforcement of Title VII for women as well as minority men. However feminists might disagree about the desirability of an ERA, Murray's speech implied, they could all agree about the importance of enforcing the new law against sex discrimination in the workplace and mobilize to ensure such enforcement.
WOMEN AND TITLE VII CONFERENCE
National Council of Women of U.S.
Hotel Biltmore, New York City
October 12, 1965
Remarks of Pauli Murray*
THE LEGAL IMPLICATIONS OF WOMEN-AT-WORK
For American women a logical, if less dramatic, outgrowth of the human rights revolution of the 1960's has been the emergence of a national policy of equal employment opportunities without discrimination on the basis of sex. Two major factors have contributed to this development, as Evelyn Harrison pointed out in her article "The Working Woman: Barriers to Employment." One is the widespread employment of, women in government, business and industry. The other is the growing recognition that "many of the discriminations imposed upon American women are imbedded in lingering memories of an antiquated social pattern, or adherence to romantic but unrealistic stereotypes of what woman's roles should be in modern life."
This policy has taken shape through a variety of steps: the reports and recommendations of President Kennedy's Commission on the Status of Women headed by the late Mrs. Franklin Delano Roosevelt; the follow-up policy recommendations of the Citizens' Advisory Council to the Interdepartmental Committee on the Status of Women; the impetus given by President Johnson's appointment of qualified women to high government posts; the guidelines developed by the U.S. Civil Service Commission for equal opportunities in federal employment; the Equal Pay Act of 1963; and the inclusion of "sex" in Title VII dealing with fair employment practices under
*This paper is based in large part upon a law review article entitled "Jane Crow and the Law; Title VII and Sex Discrimination," by Pauli Murray and Mary Eastwood, which will be published in the George Washington University Law Review, December, 1965.
the Civil Rights Act of 1964. At the state level, in addition to equal pay laws in 29 states, 44 states now have Commissions on the Status of Women and, as of August of this year, ten states and the District of Columbia have fair employment laws which include "sex."
Women in the Labor Force
The significance of these developments is seen by reference to current figures on the employment of women. One-third, or approximately 24,000,000 of the nation's labor force are women. The forecast is that there will be 30,000,000 working women in 1970. Of the present number of women in the job market, one-eighth or about 3,000,000 are nonwhite. Of these, 2,445,000 are Negro women.
About 3 out of 5 women workers are married. Among married women, 1 in 3 is working; among nonwhite married women, almost 1 in every 2 is working. One-half of working women are 40 years of age and older. With the longer life span for women, an estimated life expectancy of more than 30 years after the youngest child has completed primary school, many older women will be returning to the job market for longer periods than formerly. Among single women between the ages of 24 and 64, 3 out of every 4 are working. It is now estimated that 9 out of every 10 girls in high school will work at some time during their lives. The "second check" in middle-class families is no longer a "supplement" but an important economic contribution to the family's standard of living, education of children and other family needs.
More important, perhaps, is the fact that women are the responsible heads of 4,643,000 or one-tenth of the families in the United States, constituting a minority of comparable size to the Negro minority. Among the nonwhite families, 1,035,000 or more than 23 per cent are headed by women. Nearly half of the families headed by women have incomes of less than $3000 a year. About two-fifths of the white families and nearly three-fourths of the nonwhite families headed by women live in poverty. The unemployment rate for women is generally higher and their average
yearly earnings for full year round employment is generally lower than for men in all industries. Since a substantial number of women are responsible family heads, the nature of their employment opportunities is crucial to the welfare of at least one-tenth of the families in the United States; it is important to many of the remainder. Against this background, the Citizens' Advisory Council on the Status of Women has stated that it "considers Title VII a congressional mandate for full economic opportunity for women. In order to achieve the great potential of Title VII for securing social and economic gains for women workers as well as for other groups covered by the law, it must be interpreted with wisdom and perspective and must be vigorously administered and enforced."
Problems of Enforcement of Title VII
In the brief time allotted for this portion of our morning's discussion, we must limit ourselves to pointing up the main problem areas in the implementation of the sex provisions of Title VII which need your thoughtful consideration and continued study. There are, of course, general problems such as coverage and the relation of Title VII to state FEP laws which are common to all groups included in the act. In general, the act covers employers whose business is in interstate commerce. During the first year of operation, only those employers of 100 or more workers are covered; on July 2, 1966, coverage will include employers with 75 or more workers; on July 2, 1967, 50 or more workers; and on or after Juoy 2, 1968, 25 or more workers. In addition, Title VII, Section 706(b) provides that where a state or local law prohibits the unlawful employment practice and establishes an agency to enforce the prohibition, no charge may be filed with the Equal Employment Opportunity Commission (EEOC) until 60 days after proceedings have been brought under the stateor local law, unless the proceedings have terminated at an earlier date. The 60-day period is extended to 120 days after the effective date of a state or local law.
Section 709(d) permits EEOC to enter into agreements with state and local agencies charged with the administration of fair employment laws under which the Commission would refrain from processing any charge in any cases or classes of cases and under which no person may bring a civil suit under the Act in such cases. At the time the Civil Rights Act of 1964 was adopted, 25 states had fair employment practices laws and a number of cities had FEP ordinances, The jurisdictions which include sex as a prohibited basis of job bias are Arizona, Hawaii, Maryland, Massachusetts, Missouri, Nebraska, New York, Utah, Wisconsin, Wyoming, and District of Columbia. We can expect other states to amend their laws accordingly. Thus, women seeking redress under Title VII should acquaint themselves with state and local remedies against unfair employment practices.
The issues of enforcement of direct and immediate concern to women include: (1) education of the public toward acceptance of the law; (2) the bona fide occupational qualification as an exception to the general prohibition against discrimination in employment; (3) employment advertisements: and (4) the relation of Title VII to state laws regulating the employment of women. There are other problems of enforcement, but we have selected those which seem most likely to produce controversy in the early stages of implementing Title VII and comparable legislation. Our comments are intended only to stimulate thinking in these areas.
Education to Public Acceptance
Although the history of civil rights legislation had indicated a gradual expansion of prohibited bases of discrimination to include other non-merit factors in addition to race or color, the "sex" provision of Title VII was greeted with considerable levity and some deris ion by wide sections of the press. A few employers reportedly made some changes in their employment policies. On the whole however, the tone of the Wall street Journal on June 22, 1965 indicated what could be expected. The Journal reported that "to a certain extent, how large a gain
women will make in winning more or better jobs will depend upon how actively they themselves push for new positions. Government officials say they're presently inclined to give the new sex regulations a very lenient interpretation ‘if the women's groups will let us get away with it.’ And some companies say they plan to sit tight on current practices until challanged by women."
To counteract this trend, the Citizens' Advisory Council on the Status of Women a few days ago issued a strong statement which declared in part:
The recent concentration, on the part of the press, on various odd hypothetical cases which have no bearing on the real problems of sex discrimination fosters an attitude that the whole subject is one which should be taken lightly and invites acceptance of such an attitude by a disturbingly large segment of the public. The implications of such attidues toward compliance with a Federal law are obvious. Unless the public is brought to understand that to deny a qualified woman a job simply because she is a woman is wrong, and that women have been and continue to be denied equal employment opportunity throughout the United States the Equal Employment Opportunity Commission (EEOC) will be handicapped in achieving compliance with Title VII. Emphasis upon the difficulties of interpreting the law also give the impression that enforcement may be delayed indefinitely and that compliance is not required.
The Council calledupon EEOC to utilize its resources and authority to educate the public toward acceptance of the law, to inform working women of their rights under the law and to adopt an affirmative and positive attitude of encouraging employers, employment agencies and unions to co mply with the prohibitions against discrimination by reason of sex. On September 24, 1965, Sylvia Porter's column pointed out that of the fewer than 60 complaints of job bias made by women to the Commission, virtually all concerned such important matters as "separate seniority lists providing more andbetter seniority rights for men than for women; discriminatory retirement policies; special provisions under which women are fired if they marry but men are not; exclusion of women from corporate training courses which might lead to higher jobs."
In this connection, it is heartening to see that women have not let these levities go unchallenged but have written letters to editors answering frivolities with solid arguments and placing the issues in perspective. More of this type of "self-help" is needed.
The Legal Doctrine of "Classification by Sex"
Members of the press, of course, are not the only offenders. An equally serious problem of encourageing compliance with the law is a tendency on the part of some membersof the legal profession to look upon the "sex" provision as a bit of nonsense. This attitude is found among some lawyers who loudly protest the denial of civil rights to Negroes. One wonders about the degree of commitment of those who champion one human right and minimize or ignore another.
The problem of re-education, therefore, is one which includes those lawyers and judges conditions by legal doctrines which have sanctioned sex distinctions and discriminations in the past. The long-held principle that sex furnishes a reasonable basis for legislative classification has been used as a discriminatory device and has actually helped to perpetuate differential treatment of women. Ironically, the doctrine was promul gated by the Supreme Court in 1908 "to secure an equality of right in the unequal struggle for subsistance." It represented the convergence of paternalism and genuine social reform in labor standards and was announced against a background of the common law position of women before they had gained political equality and on the basis of conditions in industry and medical knowledge then available.
There is a growing view, among women lawyers at least, that the doctrine of "classification by sex" as applied is an anachronism in the law; that it has produced results comparable in some respects to the "separate but equal" doctrine, and that, although it was useful in sustaining the validity of labor legislation in thepast, perhaps it should now be shelved along side of the "separate but equal" doctrine. What is now needed is a
shift of emphasis from a blanket conception of women's class attributes (sex per se) to the more realistic conception of their functional attributes, which vary widely. The boundaries between social policies which are genuinely protective of family andmaternal functions and policies which are unjustly discriminatory against women as individuals must be redrawn. This reorientation will become increasingly important as administrative agencies and the courts begin to deal with the implications of "sex" provisions in fair employment legislation.
The most immediate general issue of discrimination in employment and the one most likely to generate heated controversy until it is satisfactorily resolved is the discriminatory practice which take s place at thevery threshold of employment — the "Help Wanted" columns of newspaper ads. Title VII is clear and unequivocal on this point. Section 704(b) provides:
It shall be an unlawful employment practice for an employer, labor organization, or employment agency to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer … labor organization, or relating to any classification or referral for employment by such a employment agency, indicating any preference, limitation, specification, or discrimination based upon … sex … except that such notice may indicate apreference, limitation, specification, or discrimination based on rel igion, sex, or national origin when religion, sex, or national origin is a bona, fide occupational qualification for employment.
This provision, of course, must be read and interpreted in conjunction with the bona fide occupational qualification clause, but it can be stated categorically here that unless working women gird themselves for a determined effort against the pressures of newspaper and advertising lobbies which have already been felt by EEOC and similar agencies, their rights under the act will be illusory. A loose or broad interpretation of the bona fide occupational qualification clause could practically read women out of the act. A loose interpretation of the advertising prohibition can serve to discuourage women from seeking to advance their economic position.
What is the present experience with advertising? Hawaii, which has a law similar to the federal law, has taken a positive approach. A directive has been issued under the Hawaii Fair Employment Practices Act stating that only advertisements which solicit employees on the basis of sex, etc. when sex is part of a bona fide job qualification will be permitted. Employers are advised to request an advisory determination from the Commission when they wish to establish such a criterion as an occupational qualification.
On July 14, 1965, the District of Columbia Council of Human Relations issued a directive declaring that the advertising of positions as "Help Wanted —Men" and "Help Wanted — Women" would violate the new Regulation of the Council unless the positions involved were such that sex was a bona fide job qualification.
On the other hand the New York State Commission on Human Rights issued suggested, rulings andinterpretations of the 1965 sex amendment to the state fair employment practices act on September 17, 1965, which included the following statement:
Help Wanted and Situation Wanted advertisements may be classified into Male and Female Columns provided, however, the following legend clearly accompanies said classifications:
"Important Notice: The New York State Law Against Discrimination and the Federal Civil Rights Act of 1964 prohibit discrimination in employment because of sex unless based on a bona fide occupational qualification. Help Wanted and Situation Wanted advertisements are arranged in columns captioned ‘Male’ and ‘Female’ for the convenience of readers and are not intended as an unlawful limitation or discrimination based on sex.
It is not entirely clear whether the Equal Employment Opportunity Commission has issued a formal ruling on this subject, but it does appear that the Commission has contemplated a directive somewhat along the lines taken by the New York State Commission. Both agencies have given assurance, however, that any guide-lines issued on advertisements are merely "tentative and provisional" and are subject to revision in the light of experience to insure that male and female classifications in help wanted advertising do not operate to limit employment opportunity.
Such rulings as that of the New York State Commission on Human Rights and that contemplated, if not issued, by EEOC are unfortunate. More than that, they seem clearly to be based upon an erroneous interpretation of the Federal law. The term "reader's convenience" is little more than a euphemism for "employer's preference" in many cases, and the ruling serves to permit an employer to do indirectly what he cannot do directly.
The Citizens' Advisory Council has expressed alarm at the lack of compliance with the clearly expressed prohib ition in Title VII as evidenced by the continued advertising in sex-segregated newspaper columns. It might be pointed out here that as of October 4, 1965, neither the Herald Tribune nor the Wall Street Journal ads had complied with the lenient direction of the New York agency, but carried ads in sex-segregated columns without any legend. As the Council pointed out, "separate ‘help-wanted men’ and ‘help-wanted women’ columns in newspapers serve only to advise prospective job applica nts not to apply where they are not wanted, thus perpetuating discrimination. Moreover, sex-segregated newspaper columns actually encourage employers to place a sex label on jobs, which unin tentionally restricts the employment opportunities of both men and women." The situation can be stated in even stronger terms. One who is a member of several disadvantaged minorities has little difficulty in seeing the analogy between continued segregated help-wanted columns and signs which say "Restricted," "Christian Churches Nearby" or "White Only Need Apply."
The Council has urged EEOC to take a firm position in this matter and to seek the cooperation of newspapers. Some newspapers, for example, The Blade (Toledo, Ohio), Toledo Times, The Phoenix Gazette, and the Honolulu Star-Bulletin have already discontinued separate help-wanted columns. Where sex is a bona fide occupational qualification, it could be specified in individual advertisements. Women and women's organizations are urged to make their voices heard and to bring pressures upon the agencies involved to prohibit any device under which an employment advertisement expresses a sex preference unless the employer can show that being a man or a woman in the particular case is a bona fide qualification.
Bona Fide Occupational Qualification
We now come to what is undoubtedly the most important issue in administering the sex provisions of Title VII and similar fair employment acts—the interpretation of the bona fide occupational qualification exception.
Section 703(a) makes it an unlawful employment practice for an
employer to refuse to hire or to discharge an individual or otherwise discriminate against an individual with respect to his compensation, terms, conditions or privileges of employment because of the individual's sex. It is also an unlawful employment practice for an employer to limit, segregate, or otherwise classify his employees in any way which would deprive or tend to deprive an individual of employment opportunities or adversely affect his status as an employee because of such individual's sex. Comparable provisions define unlawful employment practices of employment agencies and labor organizations. (Sections 703(b) and 703(c)).
It is not an unlawful employment practice for an employer to hire or employ employees, for an employment agency to classify, or refer to employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, "on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise."
It is the conviction of the Citizens' Advisory Council on the Status of women and others genuinely interested in equal employment opportunities for women that this exception as to sex should be interpreted narrowly. The experience of the Federal government as an employer, as well as much of private industry, has clearly demonstrated that there are very few jobs which cannot be effectively performed by qualified persons of either sex. A Civil Service sample survey made in 1963, showed that out of 34,000 requests for candidates for new appointments from Civil Service examination lists, only 40 specified sex. In other words, "sex"
was considered relevant in about one-tenth of one per cent of the requests.
The experience of the Civil Service Commission in carrying out the Federal policy of equal employment opportunity without discrimination on the basis of sex, suggests that an effective way to seek compliance with Title VII is to specify some of the conditions which may not be used as a basis for excluding women from consideration for a position. Emphasis upon what is not a bona fide occupational qualification rather than what is such a qualification would help to avoid ridiculous hypothetical such as male bunnies, male women's fashion models, etc. It would also help to clarify what should be regarded as discriminatory against women.
We offer here only a few illustrations of the kinds of excuses given by employers which should not be permitted as a job qualification exception:
(l) the refusal to hire a woman because of her sex, based upon the assumption that women statistically are only temporary workers, or the assumption that the turnover: rate is higher among women than among men;
(2) The refusal to hire a woman. because, of sex prejudice on the part of the public, clients, customers or other employees or some other group which the employee will come in contact, with;
(3) The refusal to hire an individual based on stereotyped characteristizations of the sexes; i.e., women are not aggressive salesmen like men; women express their emotions differently than men; men are less capable of assembling intricate equipment; men are stronger than women: women have more endurance than men.
The principle of nondiscrimination requires that individuals be considered on the basis of individual capacities and not on thebasis of characteristics generally assigned to the group. In this connection, the New York State Commission on Human Rights has declared that "customer or employer preference, or historical usage, tradition or custom will not merit the grant of a bona fide occupational qualification, without further justification." The Commission offers as an example an employer's preference for hiring male accountants and his refusal to employ a qualified woman accountant merely because she is a woman.
Title VII, and State Laws Regulating: Employment of Women
In applying the principle of nondiscrimination in employment, the problem arises of harmonizing state fair employment practice laws and Title VII with state labor legislation applicable to women only or women in certain industries. This area of the law is too complex to treat adequately in the short time at our disposal. Briefly, the various state laws involved fall into the following categories: (l)laws prohibiting employment of women in certain occupations (bars, mines); (2) maximum hours laws for women: (3) minimum wage laws for women; (4) laws restricting employment of women at night in certain industries; (5) weight-lifting limitations; and (6) laws requiring special facilities for women workers, such as seats and restrooms. Interested persons are referred to the July 1965 Summary of State Labor Laws For Women issued by the Women's Bureau of the U.S. Department of Labor to determine which states have which laws.
Some of these laws offer genuine protection to women; others are unduly restrictive of employment opportunities. Some will present little or no problem in the administration of equal employment opportunities for women. Others, like: night work laws, may definitely conflict with Title VII. Statemaximum hours laws for women are the most common and also the most controversial. Considerable differences of opinion exist among women's organizations as to the efficacy of retaining all of these laws intact.
The Fair Labor Standards Act, which covers an estimated 27.5 million men and women workers provides for premium pay as a deterrent to excessive hours of work. The President's Commission on the Status of Women states that "the best way to discourage excessive: hours for all workers is by broad andeffective minimum wage coverage, both Federal and State, providing overtime of at least time and a half the regular rate for all hours in excess of 8 a day or 40 a week." The Commission also recommended that until this was done it favored, the retention of state maximum hours laws for women, that provisions for flexibility should be made and that during this interim period continuous efforts should be made to requrie premium pay for overtime. The Commission favored generally the replacement of State laws providing restrictions on weight lifting and night work by more flexible regulations applicable to both men and women and administered by appropriate regulatory bodies.
Significantly, the various state commissions on the status of women (there are now 44) are coming forth with recommendations which point toward the elimination of sex distinctions in state labor legislation. The Washington Governor's Commission on the Status of women recommended repeal of the state law regulating hours of work for women only. The New York Governor's Committee on the Education and Employment of Women recommended reexamination of the state's laws regulating hours of work and conditions of labor for women. The Tennessee Governor's Commission also recommended a study of the questions of maximum hours to enhance further employment opportunities for women. The North Carolina Governor's Commission recommended legislation to prohibit wage, salary or hours discrimination on the basis of sex and uniformity for men and women in hours legislation.
This trend suggests a movement toward improved labor standards applicable to both sexes which will make the task of administering Title VII an easier one in this area. Meanwhile, attempts to preserve all state protective laws might result in virtually reading women out of the Civil Rights Act of 1964. Women are therefore urged to acquaint themselves with the work of the various state commissions, to seek the establishment of state commissions on the status of women in the six states which presently have not taken this step (Alaska, Connecticut, Ohio, New Mexi co, Texas and Wyoming) and to try to bring about uniform labor standards at the state level.
Historically, one might view the sex provision of Title VII as of significance comparable to that of the Nineteenth Amendment. If vigorously enforced, women will have the opportunity of advancing in accordance with their abilities and interests. But there is reason to believe that it will not be adequately enforced unless the political power of women is brought to bear. In the case of the Nineteenth Amendment, the organized resistance came in advance of the law. In the caseof Title VII, the resistance is just beginning to be organized. It should not be necessary to have another March on Washington in order that there be equal job opportunities for all. But if this necessity should arise, I hope women will not. flinch from the thought.
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