Murray's memorandum in support of the sex discrimination amendment to Title VII was widely disseminated in both the executive and legislative branches as well as among advocates for women's rights. Her argument that the sex amendment was necessary to protect African American women from both race and sex discrimination provided a compelling supplement to arguments that a provision prohibiting employment discrimination based on sex was necessary to protect white women who otherwise might be overlooked in favor of African American workers.
MEMORANDUM IN SUPPORT OF RETAINING THE AMENDMENT
TO H.R. 7152, TITLE VII (EQUAL EMPLOYMENT
OPPORTUNITY) TO PROHIBIT DISCRIMINATION
IN EMPLOYMENT BECAUSE OF SEX
On February 8, 1964, during the debate on Title VII (Equal Employment Opportunities) of the Civil Rights omnibus bill (H.R. 7152) in the House of Representatives, Mr. Howard W. Smith (D., Va.) introduced an amendment to add the word "sex" to the list of prohibited grounds of discrimination with respect to employment opportunities. Following debate, the amendment was adopted by a vote of 168 to 133. (See Congressional Record, Vol. 110, No. 24, pp. 2484-2492.) (See Appendix II.)
Section 704 of H.R. 7152 as finally passed by the House and sent to the Senate makes unlawful certain enumerated practices by an employer, labor organization or employment agency because of an individual's "race, color, religion, sex, or national origin."
Recently, according to newspaper reports, Republican Senator Everett M. Dirksen, Minority Leader, indicated that he would seek a series of amendments to Title VII including the elimination of the word "sex" as adopted by the House. Reportedly, since Senator Dirksen's support is considered crucial in marshaling sufficient voting strength to impose closure and
defeat the filibuster against the bill, he may be successful in having the "sex" amendment eliminated. Thus, the fate of this provision in the Senate is in doubt.
In these circumstances, if this important protection of the rights of women is not to be lost it is imperative that active support for the amendment be communicated to members of the Senate immediately. The following discussion is an attempt to clarify some of the issues which have been raised in connection with this proposal and to place it in historical perspective.
HOUSE DEBATE ON THE PROPOSAL
At the outset, it must be emphasized that not one of the speakers who opposed the amendment in the House debate denied that there is discrimination against women in employment which should be remedied. The opponents of the amendment offered the traditional arguments: (1) the main purpose of the civil rights bill is to end discrimination against Negroes and to include "sex" would clutter up the bill and jeopardize its primary purpose; (2) the amendment would be an entering wedge to destroy protective legislation favorable to women; (3) Congress has not had time to study this proposal; there is no legislative record or findings and hearings should be held before any vote is taken on the amendment; (4) biological differences between men and women pose different problems with respect to employment, and thus Congress should
further studies are made. A letter from the United States Department of Labor voicing the opinion "that to attempt to so amend H.R. 7152 would not be to the beat advantage of women at this time" was inserted in the record along with a letter from the Chairman of the Legislative Program Committee of the American Association of University Women stating that "the inclusion of the word ‘sex’ in this title is redundant and could actually work to the disadvantage of this very important legislation."
Proponents of the amendment argued: (1) that unless it is adopted, white women will be at a disadvantage since employers, fearing prosecution for race discrimination under the act, will tend to give preference to Negro women (and Negro men) over white women; (2) in the restoration of civil rights for all, equal opportunities for all should be preserved; (3) opportunities should not be obtained on account of race, color, creed, social status or economic status—but on account of merit; (4) the amendment will not ruin the bill as has been suggested; the same argument with respect to the provision of the Civil Rights Act of 1957 permitting women to serve on federal juries has proved to be baseless.
PROTECTION AGAINST DISCRIMINATION IN EMPLOYMENT BECAUSE OF SEX IS AN APPROPRIATE ITEM FOR INCLUSION IN TITLE VII, H.R. 7152
A. Historically, Women's Rights and Civil Rights Have Been Parallel and Interrelated Movements
Although H.R. 7152 is an immediate consequence of the nationwide Negro revolt of 1963, it has become increasingly clear that this revolt is the most acute symptom of a human rights revolution underway in the United States. It is no accident that revived national interest in the status of women has occurred at precisely the same moment in history that Negroes have shown unprecedented militancy and determination to achieve full participation in the common life.
Public preoccupation with long overdue reforms in civil rights forced upon the national consciousness by the intensity of the struggle should not obscure significant parallel historical developments. A revolution in women's rights which began in the nineteenth century simultaneously with the antislavery movement and reached one climax with the adoption of the Nineteenth Amendment in 1920 is now moving forward to completion even as the civil rights movement crests in the first spontaneous nationwide challenge to racial discrimination since the Emancipation.
Historically, women and Negroes have held strikingly
similar positions in American society and have carried on interrelated struggles to achieve full citizenship. The idealization of WOMAN as wife, mother, or sister has not concealed the harsh truth that although women have attained a numerical majority,1 in several respects they have a status comparable to that of an ethnic minority. As they have assumed various roles in the community as members of the labor force, family heads, civic volunteers and leaders, or public servants, they have experienced both subtle and explicit forma of discrimination comparable to the inequalities imposed upon minorities. More than twenty-five years ago, Blanche Crozier, writing in the Boston University Law Review, pointed up this parallel.
…Race and sex are in every way comparable classes; and if exclusion in one case is a discrimination implying inferiority, it would seem that it must be in the other also …
Not only are race and sex entirely comparable classes, but there are no others like them. They are large, permanent, unchangeable, natural classes. No other kind of class is susceptible to implications of inferiority. Aliens, for instance, are essentially a temporary class, like an age class, only permanent and natural classes are open to those deep, traditional implications which become attached to classes regardless of the actual qualities of the members of the class … 2
1 In 1960, the total female population of the United states was 90,992,000, as against 88,331,000 males. Statistical Abstract of the United States, 1963, U.S. Dept. of Commerce, Table 17.
2 Constitutionality of Discrimination Based on Sex, 15 B.U.L. Rev. 723, 727-728 (1935).
The marked parallels in the status of women and Negroes have been documented by historians and social scientists. Whether the point of departure has been a study of women or of racial theories, contemporary scholars have been impressed by the interrelation of these two problem in the United States. In her provocative study of women, The Second Sex, the French author, Simone de Beauvoir, makes frequent reference to the position of American Negroes. Dr. Gunnar Myrdal in his classic study, An American Dilemma, published in 1944, noted that the similarity of the two problems was not accidental but originated in the paternalistic order of society.
"From the very beginning," Dr. Myrdal observed, "the fight in America for the liberation of the Negro slaves was closely coordinated with the fight for women's emancipation … The women's movement got much of its public support by reason of its affiliation with the Abolitionist movement."
The myths built up to perpetuate the inferior status of women and of Negroes were almost identical, Dr. Myrdal found.
As in the Negro problem, most men have accepted as self-evident, until recently, the doctrine that women had inferior endowments in most of those respects which carry prestige, power, and advantages in society, but that they were, at the same time, superior in some other respects. The arguments, when arguments were used, have been about the same: smaller brains, scarcity of geniuses and so on. The study of women's intelligence and personality has had broadly the same history as the one we record for Negroes. As in the case of the Negro, women themselves have often been brought
in their inferiority of endowment. As the awarded his ‘place’ in society, so there Woman's
place'. In both cases the rationalization was strongly believed that men, in confining them to this place, did not act against the true interest of the subordinate groups. The myth of the ‘contented women’, who did not want to have suffrage or other civil rights and equal opportunities, had the same social function as the myth of the ‘contented Negro’.3
Similarly, Dr. Ashley Montagu in the 1964 edition of his study, Man's Most Dangerous Myth: The Fallacy of Race, documents the parallel between antifeminism and race prejudice. He writes:
In connection with the modern form of race prejudice it is of interest to recall that almost every one of the arguments used by the racists to ‘prove’ the inferiority of one or another so-called ‘race’ was not so long ago used by the antifeminists to ‘prove’the inferiority of the female as compared with the male. In the case of these sexual prejudices one generation has been sufficient in which to discover how completely spurious and erroneous virtually every one of these arguments and assertions are.
In the nineteenth century it was fairly generally believed that women were inferior creatures… Was it not apparent to everyone that their intelligence was lower, that they were essentially creatures of emotion rather than reason — volatile swooning natures whose powers of concentration were severely limited and whose creative abilities were restricted almost entirely to knitting and childbirth? … Women had practically no executive ability, were quite unable to manage the domestic finances, and, as for competing with men in the business or professional world, such an idea was utterly preposterous, for women were held to possess neither the necessary intelligence nor the equally unattainable stamina. Man's place was out in the world earning a living; woman's place was definitely in the home.4
3 p. 1077.
4 p. 181.
In the matter or equal opportunities for scientific achievement, Dr. Montagu notes that women have had little chance to obtain employment as instructors in the science departments of our colleges—about 1 to 100. Says he, "The pattern of antifeminist argument is identical with that of the racist argument. Deny a particular group equality of opportunity and then assert that because that group has not achieved as much as the groups enjoying complete freedom of opportunity it is obviously inferior and can never do as well."5
Moreover, he finds the same underlying motives at work in antifeminism as in race prejudice, "namely, fear, Jealousy, feelings of insecurity, fear of economic competition, guilt feelings and the like," He reminds us that this interrelation has persisted right up to the present:
We know that to gain even so much as a hearing women had to fight every inch of the way. Ridiculed, maligned, opposed at almost every turn, and even imprisoned, the leaders of the women's movement realized that they would actually be forced to fight—and fight they did. They pitched no battles, although there were a few clashes with the police, but they insisted on making themselves heard—until they succeeded.
The leaders of groups upon whom the egregious epithet ‘minority’ has come to be visited would do well to take a leaf out of the suffragettes book. In the year 1963 they finally did.6
The implications of these findings are irresistible. In matters of discrimination, it will be found that the problems
5 Ibid., p. 182.
6 Ibid., p. 184.
of women are not so unique as we have been led to suppose. Those leaders who were most instrumental in bringing about a change in the status of women clearly recognized the interrelationship of their struggle with that of Negroes. That manifestations of racial prejudice have been more brutal than the more subtle manifestations of prejudice by reason of sex, in no way diminishes the force of the equally obvious fact that the rights of women and the rights of Negroes are only different phases of the fundamental and indivisible issue of human rights. It is against the background of their parallel development that the "sex" amendment to Title VII must be viewed.
B. Failure to Recognize the Interrelation of Human Rights Has Had Tragic Consequences in United States History
The costly lesson of American history is that human rights are indivisible. They cannot be affirmed for one social group and ignored in the case of another without tragic consequences. Whenever political expediency has dictated that the recognition of basic human rights be postponed, the resulting dissension and conflict has been aggravated. Time and again this lesson has been driven home to us—in the Civil War, the woman's suffrage movement, the violent upheavals of labor, and in the Negro revolt of 1963.
Dr. Kyle Haselden, editor of The Christian Century, has asserted that prejudice Is a disease of which we are all
victims. If this is true, as it appears to be, then it follows that prejudice manifested against one group through discriminatory action may well seek outlets against another group when this action is prohibited. This theory is suggested in Dr. Montagu's sober comment on the contemporary racial crisis. He observes:
It is a thought worth pondering whether there may not be some relation between the slackening of prejudice against women and the increase in the intensity of prejudices against ethnic and minority groups; that is, whether a certain amount of displaced aggression is not involved here. Man, it would seem, must have a scapegoat, and for his purposes any distinguishable group will do against which the exhibition of aggression or prejudice is socially sanctioned. It is a likely hypothesis that much of the deep-seated aggression which was at one time canalized in an antifeminist direction today serves to swell the tide of that which expresses itself in race prejudice.7
The United States cannot afford to repeat the costly errors of the nineteenth century. One of these was the failure to grant universal suffrage at the end of the Civil War, a failure the political consequences of which are still being suffered today. Dr. Myrdal saw this clearly in his examination of the movement for woman's suffrage.
The women had nearly achieved their aims, when the Civil War induced them to suppress all tendencies distracting the federal government from the prosecution of the War. They were apparently fully convinced that victory would bring the suffrage to them as well as to the Negroes.
The Union's victory, however, brought disappointment to the women suffragists. The arguments ‘the
7 Ibid., p. 133.
Negro's hour' and a ‘political necessity’ met and swept aside all their arguments for leaving the word ‘male’ out of the 14th Amendment and putting ‘sex’ alongside ‘race’ and ‘color’ in the 15th Amendment. Even their Abolitionist friends turned on them, and the Republican party shied away from them… Charges of being Democrats and traitors were heaped on the women leaders. Even a few Negroes, invited to the women's convention of January, 1869, denounced the women for Jeopardizing the black men's chances for the vote. The War and Reconstruction Amendments had thus sharply divided the women's problem from the Negro problem in actual politics. The deeper relation between the two will, however, be recognized up till this day …8
Viewing the aftermath of the Reconstruction in the South in retrospect, one cannot help wondering if the history of this region might not have been vastly different if women had received the vote along with Negro males in 1870. The political emancipation of the women of the South might well have eased the transition from a slave society to a society of free men and women. Political power in the hands of white women, in particular, could have reduced the fear of "Negro domination." They could have been able to bring to bear their influence upon the difficult problems of reconstruction. It is interesting to note that, whatever other forces may have been at work in the South, a sharp drop in lynching followed the achievement of universal woman's suffrage in 1920, as the following table indicates:9
8 An American Dilemma, pp. 1075-1076.
9 Work, Negro Year Book, 1937-38, p. 156.
Despite the remarkable advances which women have made in a century and a half of struggle, many inequities remain. The most widespread of these is discrimination in employment opportunities. Because of their history as the largest single group in American society which has suffered continued inferiority of status, they are the natural allies of disadvantaged minorities. Moreover, they can perform a valuable national service in the present racial crisis through their organized cooperation with the federal, state and local governments in an attempt to transform violent conflict into constructive community action.
But given the bitter memories of postponement of recognition of their rights through prejudice or political expediency a century ago, women are understandably apprehensive and resentful of any proposed legislation which may appear to grant rights to Negroes at the expense of their own rights. In the highly competitive area of employment many women feel this will be the case unless they are expressly included in
protection against employment discrimination. It is the task of statesmanship to prevent a possible injustice by viewing the issue of discrimination by reason of sex as an appropriate subject of legislation in Title VII of H.R. 7152.
INCLUSION OF THE "SEX" AMENDMENT WILL STRENGTHEN
THE MAIN PURPOSE OF THE CIVIL RIGHTS BILL
A. The Employment Rights of All Must Be Protected Or the Rights of None Will be Secure
It has been argued that the inclusion of the "sex" amendment may jeopardize the main purpose of the bill which is to eliminate discrimination against Negroes. On the contrary, it may be argued that the amendment will strengthen the chief purposes of the bill. The United States Constitution guarantees rights to persons, not to groups. The words "race" and "sex" appear respectively only in the Fifteenth and Nineteenth Amendments extending the right of suffrage.
Congress, in adopting legislation to protect individual rights, is not concerned with Negroes as Negroes, but with individuals who are denied their inherent rights because they happen to be Negroes. As Chief Justice Warren has pointed out, "community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection."10 Today, Negroes are
10 Hernandez v. Texas, 347 U.S. 475, 478 (1954).
been thoroughly documented by the various reports of the committees of the President's Commission on the Statue of Women and by other official agencies. The Commission's report, American Women Today, recommended "Equal opportunity for women in hiring, training, and promotion should be the governing principle in private employment."11
The Commission's Committee on Private Employment, in the introduction of its report, noted that "increased employment of women and the need for their services has brought forcefully to public attention the necessity for equal employment opportunities for that one-third of the Nation's work force composed of women."12 The report continued:
Although women in the work force have a somewhat higher-than-average schooling than men, they, more generally than men, work in jobs far below their native abilities or trained capabilities. Barriers to women's employment and to their occupational progress generate feelings of injustice and frustration. Moreover, failure to develop and use the talents of women is a waste the Nation cannot afford. The public interest requires elimination of restrictions on employment of women and assurance of fair compensation and equal job treatment on a merit basis.13
The United States Department of Labor reported that 24 million women were in the work force as of April, 1962. The
11 P. 30.
12 Report of the Committee on Private Employment to the President's Commission on the Status of Women, October 1963, p. 1.
forecast is for 30 million by 1970. One-eighth, or approximately 3,000,000 of these women are nonwhite, of which 2,455,000 are Negro women. It is estimated that from eight to nine out of every ten women will work during some portion of their lives. And since women have a longer life span than men, many older women will be returning to the job market for longer periods of time than formerly. Women are the responsible heads of one-tenth or 4,643,000 of the total families in the United States. Among the nonwhite families, 1,035,000 or more than 23 per cent are headed by women. In April, 1962, the Department of Labor reported that the number of unemployed women— those actually looking for work—was 1,411,000. About 3 out of 5 women workers is married. Among married women 1 in 3 is working; among nonwhite married women almost 1 in 2.14
These figures speak for themselves. They indicate that women constitute a permanent sector of the labor force which will not diminish but increase. Moreover, since a substantial number of these women are the responsible heads of families— either self-supporting or contributing to the support of themselves and others—the nature of their employment opportunities is crucial to the welfare of one-tenth of the families in the United States.
14 Ibid., pp. 30ff; American Women, p. 27 ff; Esther Peterson, "Working Women", Daedalus, Journal of the American Academy of Arts and Sciences, Spring 1964, pp. 671-699.
Experts working with the Commission on the Status of Women differed as to the means of protection against discrimination. The Report of Consultation on Private Employment Opportunities, September 24, 1962 stated: "Some participants believed that such prejudice [against the hiring and advancement of women] might largely be overcome by education and persuasion with respect to the changed status of women and opportunities for their utilization in the work force. Others, however, believed that, in addition, legal measures were essential for achievement of the goal."
It is submitted that the latter view is the more realistio, particularly against the background of the pending civil rights legislation on equal opportunities in employment. It is commonly known that many employers have disregarded voluntary programs both in the case of Negroes and women. A vigorous dissent was entered by the representative from the United Automobile Workers of America, AFL-CIO, to the conclusion of the Committee on Private Employment "that the nature of discrimination on the basis of sex and the reasons for it are so different that a separate program is necessary to eliminate barriers to the employment and advancement of women."15
This view betrays an undue caution in dealing with the near-revolutionary problems of human rights today. The "uniqueness" of the nature of the discrimination on the basis of sex
15 Cited in note 12 above, pp. 8, 15-18.
is largely fictitious and cloaks both timidity and paternalism. There are few, if any, jobs for which an employee's sex could be considered relevant. As in the case of Negroes, many of the "special problems" of women are culturally determined. Their problems as mothers and homemakers do not change the basic principle that the right to a job without arbitrary discrimination is a fundamental and individual right. A sound national employment policy must establish the principle of equal opportunities for all. Implementation through administrative means involves the working out of standards of merit and of bona fide occupational qualifications which apply to individuals, and do not blanket an entire sex. This does not require studies in advance but the application of the principle to various case situations.
One of the purposes of the present civil rights legislation is to reduce national tensions and conflicts. If this is so, then it is imperative that in formulating a national policy of such importance, "sex" be included at the outset of the legislation on equal opportunity. Historically, employers have not hesitated to exploit and discriminate against workers in the absence of legislative restraints. A half century or more of unmitigated violence and upheaval preceded the enactment of the National Labor Relations Act. Employers have also used one group of workers against another group. During slavery, skilled Negro slaves were set in competition with free white workers of the South; immigrant labor
to undercut the more aggressive native-born workers; Negroes have been used as strikebreakers; women have been used to keep wages low in certain occupations. Like Negroes, the majority of women workers are employed in unorganized and unprotected jobs. It is axiomatic that where there is a steady pool of unemployment as there is today because of automation and slow economic growth, competition for jobs will be fiercest among workers in semi-skilled and unskilled categories where women and Negroes are found in large numbers. Unless all workers are reassured that they will have equal employment opportunities bitter competition and conflict with racial implications will continue even after the adoption of Title VII, thereby defeating the main purpose of the Title.
B. The Inclusion of the "Sex" Amendment is Necessary to Protect Negro Women
More than one-half of the Negro adult population are women, subject to all of the disabilities of women generally in an aggravated form. One of the chief arguments in favor of the "sex" amendment in the House debate was that unless this amendment was adopted white women would be placed as a distinct disadvantage in the job market. The theory is that if a white woman and a Negro woman equally qualified apply for the same job in an establishment which has not hired Negroes, the employer would be under pressure to avoid prosecution on grounds of race discrimination and would the
employ the Negro woman.
Undeniably, this is a possible result in the situation in which an employer who has previously excluded or downgraded Negroes is now in the process of changing his policies and competing applications are made during the transition period. The introduction of Negroes, whether men or women, into an enterprise for the first time inevitably involves a racial preference if simultaneously there are numerous qualified white applicants for the identical jobs. For a temporary period, seeming injustices may occur. These should be anticipated and minimized as far as possible. Once the transition period is over, however, and an employer has established integrated patterns of employment, charges of discrimination on grounds of race are not likely to be upheld in the absence of a clear and unequivocal showing.
What is more likely to happen, however, is that if there is no "sex" amendment, in accordance with the prevailing patterns of employment both Negro and white women will share a common fate of discrimination, since it is exceedingly difficult for a Negro woman to determine whether or not she is being discriminated against because of race or sex. These two types of discrimination are so closely entertwined and so similar that Negro women are uniquely qualified to affirm their interrelatedness.
A strong argument can be made for the proposition that Title VII without the "sex" amendment would benefit Negro males primarily and thus offer genuine equality of opportunity
to only half of the potential Negro work force. A startling fact of enormous importance to the whole discussion of equal employment opportunities is that during the past century the ratio of Negro males to Negro females in the United States has steadily declined and done so more sharply than the decline within the white population. The 1960 census showed an excess of 648,713 Negro females over Negro males, an overall ratio of 93.3 Negro males to every 100 Negro females. More than a half million of this excess number of females were 14 years and over. (See Appendix I, Tables 16 and 17.)
The statistical profile of the Negro woman which emerges from the latest census reports is that there is an additional factor to the much talked-about "matriarchal" nature of Negro life which contributes to her aggressiveness and militance. In a more sharply defined struggle than is apparent in any other social group in the United States, she is literally engaged in a battle for sheer survival. The figures show that she has less chances of finding a mate, remains single longer and in higher incidence, bears more children, is in the labor market longer, has less education, earns less, is widowed earlier and carries a heavier economic burden as a family head than her white counterpart. (See Appendix I, Tables 1-15.)
Moreover, while it is now generally known that women are constitutionally stronger than men, that male babies are more fragile than female babies, that boys are harder to rear to maturity than girls, that the male death rate is slightly
higher and life expectancy for males is shorter than that of females, within the Negro group the numerical imbalance is more dramatic than within other groups in the United States.
For example, within the white population, the excess of women over men shows up in the middle and later years when women are widowed. In the Negro population, however, the excess is present in every age group over 14 and is greatest in the 15-44 age group which covers the years of marriage and child rearing. Consider the fact that in the 15-24 nonwhite age group, there are only 96.7 males for every 100 females. This ratio drops to 88.4 in the 25-44 age group. Compare this with the white population in which the ratios for these two age groups are 102.2 and 98.1 respectively. (Table 6.)
One result of this imbalance is that Negro men and Negro women have been thrown into active competition with one another in an employment market where opportunities have been restricted by reason of race. For example, in 1960 there were 184,000 nonwhite women who had completed four or more years of college—21,000 more than nonwhite male college graduates. It was assumed by many people that Negro girls were taking greater advantage of educational opportunities than Negro boys. This was only partly true. The percentage of the two sexes completing a college education was relatively the same. The greater number of Negro women college graduates corresponded to the greater number of women in the Negro population.
If we add to the large reservoir of unmarried non-white
women (22.4%), a higher proportion of widowed, separated and divorced nonwhite women than of white woman, we have combined factors which make the Negro woman the responsible head in more than one-fifth (23%) of all nonwhite families, or 1,035,000 families in the United States. She cannot assume with any degree of confidence that her economic support will come through marriage, since a large number of Negro women will have to remain unmarried unless they find mates outside of the American Negro group.
The Negro woman must be prepared to support herself and others for a considerable period of her life. For her, therefore, if civil rights legislation is to be effective, it must of necessity include protection against discrimination in employment by reason of sex.
III. THE "SEX" AMENDMENT WILL HELP EFFECTUATE EQUAL PAY
By 1963, 24 States had equal pay laws. A federal equal pay law was enacted as an amendment to the Fair Labor Standards Act, and was signed by the President on June 10, 1963 (Public Law 88-38). The Committee on Private Employment of the President's Commission on the Status of Women reported that there is still widespread existence of dual pay scales for men and women in industry. This pattern continues alongside of a pattern which tends to limit women to lower-paying jobs. It has been suggested that employers, faced with a vigorous enforcement
policy of the equal pay laws, will replace women with men. If the national policy of equal pay for comparable work is to be effectuated, it must be buttressed by legislation which prevents discrimination at the initial or hiring stage of employment of women. This can be accomplished by the present amendment to Title VII.
The Federal Government, led by the President, has taken the initiative in recognizing its responsibility for equal employment opportunities for women under the Constitution and has made considerable progress in implementing this policy. No insuperable difficulties have been encountered in this respect. There is no reason to suppose that private industry is unable to do the same. The argument that women have unusual problems in employment tends to be specious beside the hard fact that 24 million women are already in the work force. Since World War II, the law against discrimination in employment has developed steadily and there is now a body of experience to draw upon with respect to the administration of the various state anti-discrimination laws. Two states, Wisconsin and New York, now include "sex" as one of the prohibited grounds of discrimination in employment. The "sex" provisions are administered by the same body which enforces the provisions with respect to race, color, religion or national origin.
There is the well developed principle of bona fide occupational qualification in the New York Law Against Discrimination which can be applied to many of the situations which are thought to be peculiar to women, without a blanket exclusion of all women for consideration for jobs in which sex, of itself, is irrelevant. H.R. 7152 has a similar provision, (§704 (e)).
There is no ground for the fear that the Commission on Equal Employment Opportunities which will administer Title VII cannot develop standards of merit which protect both the individual woman worker and the employer in the matter of job qualification. The time has come for a bold imaginative approach to this problem.
For the second time within a century, the United States Senate is confronted with an issue which vitally affects the rights of more than half of the entire population. Today, however, unlike 1870, the Senate deliberations on this issue are taking place against the background of the Universal Declaration of Human Rights and an international social revolution. If the United States falls this time to meet the challenge, the judgments of history may not be so generous.
Yale Law School
New Haven, Conn.
April 14, 1964
SELECTED CHARACTERISTICS OF
THE NONWHITE POPULATION
TABLE 1. PERCENTAGE OF POPULATION
BY GRADES OF SCHOOL COMPLETED, 1960
COLOR AND SEX
TABLE 2. YEARS OF SCHOOL COMPLETED
NON WHITE POPULATION - 1960
TABLE 3. SUMMARY OF EDUCATIONAL STATUS - 1960
PERCENTAGE OF POPULATION BY GRADES OF SCHOOL COMPLETED
TABLE 4. POPULATION BY RACE AND SEX, 1960
TABLE 5. NONWHITE POPULATION BY AGE 1960
TABLE 6. SEX RATIO OF THE POPULATION, 1962
(Number of males per 100 females)
Table 7. MARITAL STATUS OF FEMALES
14 YEARS OF AGE AND OVER, 1960
Table 8. DEATH RATE BY COLOR AND SEX, 1961
(Per 1,000 Population)
Table 9 BIRTH RATES BY COLOR, 1962
(Estimated Per 1,000)
Table 10. INFANT MORTALITY RATE BY COLOR
(Per 1,000 live births)
Table 11. EXPECTATION OF LIFE AT BIRTH: 1920 to 1960
Table 12. OCCUPATIONAL GROUPS OF EMPLOYED WOMEN
IN U.S. - 1962
Table 13, ILLEGITIMATE LIVE BIRTHS
BY COLOR OF MOTHER
Table 14. FAMILY HEADS, BY SEX, 1962
Table 15. MEDIAN WAGE OR SALARY, 1960 and 1961
Questions and Answers on the "Sex"
Amendment to H.R. 7152, Title VII
(Equal Employment Opportunities)
(1) The work load of the Equal Employment Opportunity Commission would be greatly increased if it is required to handle complaints of women alleging discrimination by reason of sex. Would this not create an impossible burden on the Commission and its staff, which would be limited by the appropriation provision of Sec. 715 (not to exceed $2,500,000 for administration during the first year after enactment and not to exceed $10,000,000 during second year)?
If this should prove true, it would only dramatize the need for extending to women protection against discrimination in employment. However, unless experience under the Act indicates that the Commission cannot properly handle the case load, this concern seems premature. The solution to such problem should not be to withdraw protection against discrimination from a large class of workers, but to strengthen the Commission.
(2) What effect would including "sex" have on State protective labor laws for women?
None. Section 708(a) specifically provides:
"Nothing in this title shall be deemed to exempt or relieve any person from any liability duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this title."
Wisconsin, which includes "sex" in its fair employment law, also has protective labor legislation for women. The same is true of New York which adopted an amendment adding "sex" to the law against discrimination in employment during the 1964 session of the Legislature. On the other hand, the Washington Governor's Commission on the Status of Women, the first such State commission to report (December, 1963) recommended that the word "sex" be added to its fair employment law(Report, p. 6), that
protective legislation should apply equally to men and women, and that the State maximum hours law for women in its present form be repealed.(Report, pages 31-34).
Fair employment laws for women are necessary, whether with or without special protective legislation.
(3) Would it not work a hardship on some employers in States which have maximum hours laws, night work restrictions, and other protective laws for women, to require them to hire women?
Protective labor laws were enacted for the benefit of women workers. The question assumes that the result has been to the contrary — that protective labor laws do not protect women but have the effect of limiting their employment opportunities. Even if requiring employers to comply with both the State laws and the Federal equal employment opportunity title of the civil rights bill would cause financial problems for some employers covered by the latter, such problems would be infinitesimal as compared with the sex discrimination problem which millions of working women must continue to face if the law does not recognize their right to equal employment opportunity.
Existing federal labor legislation makes no distinction as to sex. Section 701 of the civil rights bill declares it to be "the national policy to protect the right of the individual to be free" from discrimination in employment. This national policy is paramount.
(4) Are there not special problems regarding sex discrimination which are sufficiently different from race discrimination to warrant separate treatment in the law?
There may be some jobs which can be performed only by men and others, only by women. This is not true with respect to race or color except in those rare instances where physical identity is of special importance to the particular "job(i.e. undercover work, etc.). In this sense "sex" is analogous to "religion" and "national origin" in that there are certain jobs which can be performed best by persons of certain religions or national origins. Section 704(e) of the civil rights bill recognizes this difference
between race and color on the one hand and sex, religion and national origin on the other. It provides, in part:
"it shall not be an unlawful employment practice for an employer to hire and employ employees of a particular religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupation qualification reasonably necessary to the normal operation of that particular business or enterprise…"
(5) Section 708 authorizes the Commission to seek written agreements with State or local agencies which have effective power to prohibit discrimination and which are effectively exercising such power. Under such agreements the Commission would "refrain from bringing a civil action in any cases or class of cases referred to in such agreement." Since only two States include "sex" in their fair employment laws, would not the authority of the Commission to enter into these agreements allowing State and local authorities to handle employment discrimination be curtailed in the remaining States?
No. Agreements could be entered into with respect to the other classes of cases — race, color, etc. — leaving the sex discrimination cases in those States for the Commission to handle until such times as they amended their laws to include "sex."
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