Women Were Included in the Civil Rights Act as a Joke

Gillian Thomas | Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work | St. Martin’s Press | March 2016 | 20 minutes (5,287 words)

The excerpt below is adapted from Because of Sex, by Gillian Thomas. This story is recommended by Longreads contributing editor Dana Snitzky

* * *

If there had been any necessity to point out that women were a second-class sex, the laughter would have proved it.

On February 8, 1964, an eighty-year-old segregationist congressman named Howard Smith stepped onto the floor of the House of Representatives and changed the lives of America’s working women forever.

It was the eighth and last day of debate on a bill that would become the landmark 1964 Civil Rights Act, and Smith had a proposed amendment to Title VII, the section dealing with equal employment opportunity. The current draft already prohibited discrimination because of race, color, religion, and national origin, but Smith, a Democrat from Virginia, wanted to add one more category. The clerk read Smith’s proposal aloud. “After the word ‘religion’ insert ‘sex’ on pages 68, 69, 70 and 71 of the bill.”

Smith played his “little amendment” for laughs, claiming to have been inspired by a letter he had received from a female constituent. She asked the government to “protect our spinster friends,” who were suffering from a shortage of eligible bachelors. Over guffaws from his virtually all-male audience, Smith concluded, “I read that letter just to illustrate that women have some real grievances and some real rights to be protected. I am serious about this thing.” Emanuel Celler of New York, the bill’s floor manager in the House, joined in the fun. “I can say as a result of forty-nine years of experience—and I celebrate my fiftieth wedding anniversary next year—that women, indeed, are not in the minority in my house,” he said. “I usually have the last two words, and those words are, ‘Yes, dear.’”

Several of the House’s twelve women representatives rose to try to silence the laughter and advocate seriously for the amendment. Martha Griffiths, Democrat of Michigan, was the one who finally succeeded. “I presume that if there had been any necessity to point out that women were a second-class sex,” she said, “the laughter would have proved it.” Griffiths (who supported the bill) made a shrewd appeal to the Civil Rights Act’s opponents, mainly Southern Democrats like Smith. By then, it looked inevitable that the law they hated had enough votes to pass. So she warned that without the sex provision, Title VII would afford more rights to black women than to white women. “A vote against this amendment today by a white man is a vote against his wife, or his widow, or his daughter, or his sister.”

The session eventually dubbed “Ladies Day in the House” had the hallmarks of an impromptu stunt by Smith to try to sink the Civil Rights Act. Civil rights for African Americans might have been palatable to many white legislators now that the horrors of Bull Connor and Birmingham had become national news, but civil rights for women were, literally, a joke.

Though it might have seemed incongruous for an avowed enemy of civil rights, Howard Smith had a long history of supporting the Equal Rights Amendment. Under pressure from the ERA’s supporters, he actually had been dropping hints for weeks that he intended to offer a “sex” amendment. (Most of the ERA’s supporters were white, and many kept alive a legacy of not-so-subtly racist activism dating back a century that decried expanded legal protections for African American men, such as the right to vote, that were denied to women.) As a friend to southern manufacturing interests, Smith also might have understood the human capital that would be freed up by a federal law nullifying widespread state law restrictions on women’s ability to work as many hours as men.

When Smith’s amendment was put to a vote a few hours later, it passed 168 to 133, with the most votes in favor cast by Republicans and Southern Democrats. From the gallery came a woman’s shout, “We’ve won! We’ve won!” and then another’s cry, “We made it! God bless America!” After the bill moved to the Senate for consideration, Smith’s amendment remained intact. When President Lyndon Johnson signed the Civil Rights Act into law on July 2, 1964, among its provisions was a ban on discrimination in employment “because of sex.”

* * *

Getting married meant getting a pink slip.

Today most American working women would probably be surprised to know that they have an unrepentantly racist, male octogenarian to thank for outlawing sex bias on the job. Although historians continue to debate Howard Smith’s motives, the law best known as a monumental achievement for African Americans’ civil rights was a milestone in the struggle for sex equality too. Title VII started a revolution for women.

In the Mad Men world of 1964, fewer than half of American women were in the paid labor force, making up just one-third of workers. Most working women were concentrated in a few, low-paying jobs, such as secretary, waitress, and teacher—no surprise, given that job advertisements were divided into “Help Wanted—Female” and “Help Wanted—Male.” Male bosses’ and coworkers’ leers, touches, and propositions were as much part of the air working women breathed as cigarette smoke. Getting pregnant—and for some, even getting married—meant getting a pink slip.

Today, that “Jane Crow” system no longer exists. Sixty percent of all women work outside the home, making up close to half of all American workers, and 70 percent of working women have children. Women populate the highest ranks of politics, business, medicine, law, journalism, and academia, to name only a few. A third of the justices on the Supreme Court are women, and a woman president is inevitable, possibly imminent. The ubiquitous sexual conduct previously understood to be “just the way things are” now has a name: sexual harassment. Women routinely work until late in their pregnancies, and most return to work after having their babies.

We never would have gotten from there to here without Title VII. But the law’s enactment in 1964 was just the beginning.

Women began stepping forward to use Title VII to get justice at work. The first women who sued under Title VII didn’t always get a friendly hearing; in 1964, out of 422 federal judges in the nation, a paltry 3 were women. And because Title VII’s sex provision was added so late, there wasn’t the usual history of congressional hearings and committee reports to define what discrimination “because of sex” even meant.

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Lyndon Johnson signs the Civil Rights Act. Via Wikimedia Commons.

But with each favorable decision issued by each court, the contours of that definition began to emerge. A small fraction of these cases were propelled all the way to the Supreme Court, whose interpretation of Title VII then bound all of the nation’s judges.

Most of the women whose legal battles made it to this rare pinnacle aren’t well known: Ida Phillips, Brenda Mieth, Kim Rawlinson, the women of the Los Angeles Department of Water and Power, Mechelle Vinson, Lillian Garland, Ann Hopkins, the women of battery maker Johnson Controls, Teresa Harris, Sheila White, and Peggy Young. Most were middle or working class, and most fought their cases alone for years, save for their dedicated attorneys and some supportive family and friends. None filed her lawsuit intending to end up before the nine justices. They all just wanted to work.

* * *

When a reporter asked the EEOC’s first chair, Franklin Roosevelt, Jr., ‘What about sex?’ answered, ‘Don’t get me started. I’m all for it.’

For many years, individual litigants weren’t just doing battle with biased employers or indifferent judges. The U.S. Equal Employment Opportunity Commission, the agency created by Title VII to enforce the statute, considered the sex amendment to be just as silly as Howard Smith’s audience had. When a reporter asked the EEOC’s first chair, Franklin Roosevelt, Jr., “What about sex?” he answered, “Don’t get me started. I’m all for it,” while one of the agency’s first executive directors dismissed the sex provision as a “fluke” that was “conceived out of wedlock.” The hilarity of the notion that all jobs should be open to both sexes spawned a running joke, abetted by agency officials, that Title VII had created a “bunny problem”—as in requiring that hairy-legged men be hired as Playboy Bunnies. Similarly confounding scenarios, wrote The New York Times, included “the woman who applies for a job as an attendant at a Turkish bath, a man who wants to clerk in a woman’s corset shop, the woman who wants employment aboard a tug that has sleeping quarters only for men.”

Despite the fact that women filed one-third of the discrimination charges in the first year after the EEOC opened its doors, the agency’s chauvinism made it slow to address the myriad questions those charges posed. Thanks largely to the efforts of a small but determined cadre of women staff attorneys, along with protests launched by the National Organization of Women—which was founded in 1966 by activists furious at the EEOC’s inattention to Title VII’s sex provision—the agency eventually started taking more aggressive positions. It issued opinions ruling that sex-segregated want ads violated the law, that airlines’ no-marriage policies for flight attendants unlawfully relegated them to the role of sex object, and that state “protective laws” limiting the weight women could lift or the hours they could work were preempted by Title VII and therefore null and void. When Title VII was amended in 1972 to give the EEOC power to bring litigation in its own name, those lawsuits became critical complements to the hundreds of individual cases already being litigated around the country.

* * *

Women with small children were not eligible for hire.

On a hot Florida night in September 1966, Ida Phillips sat down at her kitchen table to write a letter. Her small frame bowed over a tablecloth printed with green and orange flowers, she quickly filled three small pages with her tidy cursive. “To the President of the United States,” she wrote. “As of this date, September 6, 1966 at 7 p.m., I answered an employment ad of Martin Co. of Orlando, Fla. in which the co. seeks 100 assembly trainees. However after completing my application I was told by the receptionist that my application could not be honored due to the fact that I have a pre-school child.”

A neighbor had alerted Phillips to the newspaper notice placed by the Martin Marietta Corporation, a missile manufacturer with a sprawling facility ten miles from downtown Orlando. With a workforce numbering in the thousands, it was one of the largest employers in the city. Entry-level jobs on the assembly line paid up to $125 a week, more than double what Phillips was earning as a waitress at the Donut Dinette. Even better, the job came with a pension plan and benefits, including insurance. “You’d better get down there early,” the neighbor advised. Because he worked at Martin Marietta, he told Phillips to list him as a reference. “There’s gonna be a lot of people over there looking for that job.”

Phillips resolved to be one of them. Thirty-two years old and the mother of seven children ranging in age from three to sixteen, she was barely scraping by. Every day she counted up the tips that she’d made during her shift and decided what she could afford to buy for that night’s supper; the little bit she had left over got tucked away to cover the bills. She certainly couldn’t count on the wages her husband, Tom Phillips, got from working as a mechanic. Those he usually drank.

So Phillips, a vivacious, dimpled redhead, had driven the ten miles to the Martin Marietta facility on Kirkman Road to submit an application. When she got to the front of the line, the receptionist asked her if she had any preschool-age children. Hearing that Phillips had a three-year-old, the woman declined to let her apply. It didn’t matter that Phillips’s daughter was enrolled in day care or that she also had plenty of backup child care, including a sister who lived nearby and the stay-at-home mother who lived just next door. The company simply wouldn’t hire women with kids that young. “I felt like the world had caved in on me,” Phillips recalled. “I had my hopes up so much for it.” She needed those wages, and her kids needed those benefits.

That’s when Phillips decided to write President Lyndon Johnson. “My President, may I say that I believe that this is unjust from the policies that you have administered during your term of office,” she implored. “As equal opportunities, as equal employment and constitutional rights.” Phillips hadn’t grown up paying much attention to politics, but she had recently registered to vote and started “read[ing] the papers cover to cover.” She may not have known specifically about the 1964 Civil Rights Act, but she plainly suspected that Martin Marietta was doing something unlawful.

Phillips’s daughter, Vera Tharp, remembered that when their neighbor stopped by that night to check how Phillips had made out, he was incredulous. After all, he had kids in preschool and the company had never objected. “You need to go back over there,” he urged, “and you just ask them why.” Phillips agreed and returned to the plant the following day, but the receptionist wasn’t giving any explanations. She just repeated the rule: Women with small children were not eligible for hire.

Less than a week after she’d put her letter in the mail, Phillips got a response from the White House. Her complaint, she was told, had been forwarded to the U.S. Equal Employment Opportunity Commission, the federal agency tasked with enforcing Title VII, for further investigation.

The following summer, the EEOC issued a decision in Phillips’s favor. In November 1967, having tried unsuccessfully to convince the company to settle the case by giving Phillips the job she’d applied for, the EEOC mailed a notice to Phillips, who by then had moved with her family to Jacksonville. The agency had done all it could, it said, but she had the right to continue the case on her own by filing a lawsuit in federal court. Phillips definitely wanted to press on; she was too angry not to. Now she needed to find a lawyer.

* * *

NOW had been founded just one year earlier, and… making contact with its leadership was a ‘little like trying to find the early Christians.’

The first attorney Phillips called told her, in her words, “he didn’t think enough of the case to fool with it.” Undeterred, she said she got the idea she “should look for a Negro attorney, because [I] knew they knew more about civil rights.” A prominent African American attorney in town, Earl Johnson, was running for City Council, so Phillips met with him. Unfortunately, the campaign was taking up most of his time, he told her, and he referred her to a young black lawyer who’d just joined his law office, Reese Marshall.

Then just a year out of Howard University Law School, Marshall was participating in the fledgling but already illustrious internship program at the NAACP Legal Defense and Educational Fund. Founded in 1940 by future Supreme Court Justice Thurgood Marshall, LDF was the country’s preeminent litigation firm attacking the racial inequality that was still commonplace in American life—in education, voting, the criminal justice system, housing, public accommodations, and employment. LDF had devised and executed the litigation strategy attacking the “separate but equal” legal doctrine that had culminated in the Supreme Court’s landmark Brown v. Board of Education decision in 1954.

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Thurgood Marshall, as director of the NAACP Legal Defense and Education Fund, during a press conference in 1956. Via Wikimedia Commons

Recruiting and training foot soldiers to help wage the civil rights battle in the courts, the LDF internship program included a one-year stint in LDF’s New York headquarters that Marshall had just completed, followed by three years litigating in the field under the tutelage of a more experienced attorney. Marshall was spending his three years with Johnson, one of LDF’s national network of “cooperating attorneys,” who represented Florida’s NAACP chapter.

Today a solo practitioner in Jacksonville specializing in personal injury cases, Marshall has the sort of languid, sonorous voice, wide smile, and easy laugh that convey calm; but back in the 1960s, he handled cases that were anything but. Throughout Florida’s Klan country, he represented indigent black defendants facing lengthy sentences for trumped-up “crimes” like spitting on the sidewalk.

Despite his professional focus on dismantling the Jim Crow regime and despite Ida Phillips’s being white, Marshall felt a personal affinity for her story. Like Phillips, Marshall’s mother had little formal education, having left school in the fourth grade. A single mother of four, she moved to New York City to try to make a better living when Marshall was still in elementary school. He and his two older brothers stayed in Fort Lauderdale with his grandparents, farmers who grew beans and eggplants. (His older sister was already away at college.) When Marshall contracted polio in the ninth grade, his mother, worried about the substandard medical care available to a black child in 1950s Florida, sent for him. Marshall and his brothers took a Greyhound bus to join her in the Bronx. In the years to come, he grew up watching his mother make ends meet alone while also managing to shepherd three of her four children to college graduation.

Marshall was intrigued by Phillips’s case. Pulling out a statute book, he reread Title VII, which had gone into effect the prior year, and registered for the first time that on the list of protected characteristics was “sex.” (“Sure enough,” he later recalled, “I looked and said, yeah, there it is.”) Martin Marietta’s policy, it seemed to Marshall, presented a pretty straightforward case of sex discrimination: The company barred women with young children from working there, but not men in the same situation. If that wasn’t discrimination “because of sex,” what was? And Marshall liked Phillips. Her outrage at Martin Marietta, at its bald-faced denigration of working mothers, was contagious. “It wasn’t just about her; it was about all the other women who were in her position who were thrown aside just because they had children,” he explained. Marshall decided he was in. “Let’s test the waters,” he said.

As Marshall contemplated taking on a behemoth like Martin Marietta, including what would undoubtedly be an army of well-financed defense attorneys—he predicted he was “going to get the kitchen sink thrown” at him—he knew he could use some help. Marshall contacted LDF and a few other big names in the civil rights legal world. To his surprise, though, he couldn’t get anyone interested in Phillips’s case. At the time, there were few groups to call on devoted specifically to women’s rights. The National Organization for Women had been founded just one year earlier, and as New York Times columnist Gail Collins would later report, making contact with its leadership was a “little like trying to find the early Christians.” Other now-illustrious national women’s advocacy organizations—the American Civil Liberties Union’s Women’s Rights Project, for example, or the National Women’s Law Center—simply didn’t exist yet.

Nevertheless, convinced that Title VII had been violated and heartened by the EEOC’s endorsement, Marshall plowed ahead alone. (His only hope for eventually getting paid rested with Title VII’s requirement that if a plaintiff wins, the defendant has to cover her attorney’s fees.) On December 12, 1967, he filed a complaint in the U.S. District Court for the Middle District of Florida, seeking an order finding the company in violation of Title VII, directing it to hire Phillips, and requiring it to pay her back wages. The case was assigned to Judge George Young, a recent appointee. Within weeks, it was clear how Phillips’s claim was going to fare: In an unusual move, without any prompting from Martin Marietta, Young issued an order that eviscerated Phillips’s claim. Declaring that discrimination against women with young children did not qualify as discrimination “because of sex,” he deleted that part of Phillips’s complaint. Instead, Young ruled, her complaint would proceed as if Phillips had alleged that the company’s policy was not to hire any women at all.

That was a case that couldn’t be made; Martin Marietta submitted ample evidence to Young that the vast majority of people hired as assembly trainees were women. A few months later, citing that evidence, Young found no evidence of sex discrimination and granted judgment to the company. Although Martin Marietta hadn’t denied that it hired men with preschool-age children, Young declared that fact irrelevant. “The responsibilities of men and women with small children are not the same,” he opined, and “employers are entitled to recognize these different responsibilities in establishing hiring policies.”

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Marriage could jeopardize a woman’s career. Via Flickr.

To Reese Marshall, Young’s dismissive treatment of Phillips’s claim—“quick, fast, and in a hurry,” as he ruefully described it—was simply “devastating.” Yet he was steadfast in his belief that the case had “a good, right feel to it.” Unquestionably, there was little legal authority for Marshall to cite; Title VII was so new that the Supreme Court had never had to consider what discrimination “because of sex” meant. Indeed, no other court had ever decided a case like Phillips’s. The fact was that Martin Marietta’s policy, not to mention Judge Young’s rationale for endorsing it, was rooted in the stereotypical notion that women necessarily cared more about motherhood than about their jobs—exactly the kind of bias Title VII was surely meant to outlaw. Marshall resolved to appeal.

“I just felt like we would get a better ear in the appellate court,” Marshall said. “Someone is going to see this and understand what we’re talking about.” Given that it was the Fifth Circuit that would be hearing the case, there was reason to be hopeful; although since that time it has come to be considered one of the most conservative courts in the country, in the late 1960s, the Fifth Circuit was one of the most liberal. Nicknamed the Supreme Court of Dixie, owing to its jurisdiction over a wide swath of former Confederate states—Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas—it had gained notoriety in the years following Brown v. Board of Education as fertile ground for civil rights litigators attacking Jim Crow.

Before filing Phillips’s appeal, Marshall tried once more to interest national civil rights groups in the case, only to be rebuffed again; whatever doubts they might have had about using Phillips’s claim to test the “because of sex” provision almost certainly had been confirmed by Judge Young’s swift dismissal. So Marshall moved forward as the lone counsel. He did manage to secure the endorsement of the EEOC, which filed a brief as an amicus, or friend of the court. (Such submissions from outside interest groups help educate the court about the larger issues raised by the litigation and explain its potential wider impact on people beyond the individual parties involved in the case.)

In addition to having found in Phillips’s favor, the EEOC had a larger agenda to promote. In 1965, the year Title VII went into effect, the agency had issued “Guidelines on Discrimination Because of Sex.” Though lacking the force of law, the Guidelines informed employers, and judges, of the government’s view of what Title VII’s “sex” provision meant. One of the Guidelines’ directives was that employers not refuse to hire a woman “based on assumptions of the comparative employment characteristics of women in general,” such as “the assumption that the turnover rate among women is higher than among men.” Another provision stated that employers couldn’t base their hiring decisions on “stereotyped characterizations of the sexes,” including “that men are less capable of assembling intricate equipment; that women are less capable of aggressive salesmanship.”

Most pertinent, perhaps, was the Guidelines’ provision about a different subset of women—those wearing wedding rings. “It does not seem to us relevant that [a] rule is not directed against all females, but only against married females,” the Guidelines explained. “[S]o long as sex is a factor in the application of the rule, such application involves a discrimination based on sex.”

* * *

The common experience of Congressmen is surely not so far removed from that of mankind in general as to warrant our attributing to them such an irrational purpose.

From the beginning of his oral argument before the Fifth Circuit, it was clear to Marshall that all three of the judges on the panel agreed with Judge Young. When they issued their written opinion in May 1969, then, it came as no surprise. They found that Martin Marietta hadn’t discriminated “because of sex” because the company didn’t exclude all women, just some women:

Ida Phillips was not refused employment because she was a woman nor because she had pre-school age children. It is the coalescence of these two elements that denied her the position she desired.

The court went on to specifically reject the EEOC’s urged interpretation of Title VII. That interpretation, said the court, required believing that Congress had the “intent to exclude absolutely any consideration of the differences between the normal relationships of working fathers and working mothers to their pre-school age children, and to require that an employer treat the two exactly alike in the administration of its general hiring policies.” Nonsense, the court concluded. “The common experience of Congressmen is surely not so far removed from that of mankind in general as to warrant our attributing to them such an irrational purpose in the formulation of this statute.”

Billington;_Betty_Naomi_Goldstein_Friedan_(1921-2006);_Barbara_Ireton_(1932-1998);_and_Marguerite_Rawalt_(1895-1989)

An interviewer (left) with some of the founders of NOW: Betty Friedan, Barbara Ireton, and Marguerite Rawalt. Via Wikimedia Commons.

Marshall and Phillips were still licking their wounds from the Fifth Circuit’s resounding rejection when a curious letter arrived from the court’s clerk. “Pending further order of the Court,” it read, “the mandate heretofore issued is being recalled.” One of the other eleven judges on the court, Marshall learned, had proposed rehearing the case—but this time before all of them, not just a three-judge panel. Referred to as en banc review, such a procedure is reserved for those occasions where judges within the same court object to the outcome reached by their colleagues in a certain case. This was the first indication that Marshall’s legal arguments weren’t falling on deaf ears, and he was “elated.” “That’s what we were looking for,” he said. “Somebody who would look at this thing and understand where we were and what we were trying to say.”

Three months later, though, he and Phillips got more bad news. Without any explanation, a majority of the court had decided against rehearing the case. But included with this new denial by the Fifth Circuit, there was an impassioned dissent. Authored by Chief Judge John Brown—known for his progressive rulings throughout the civil rights maelstrom of the prior two decades—it was signed as well by two of his colleagues. “The case is simple. A woman with pre-school children may not be employed,” but “a man with pre-school children may,” Brown wrote. “The question then arises: Is this sex-related? To the simple query the answer is just as simple: Nobody—and this includes Judges, Solomonic or life tenured—has yet seen a male mother.”

Judge Brown sardonically dubbed the court’s interpretation of Title VII the “sex plus” test: All an employer had to do was use sex “plus” another characteristic as its screening mechanism, and it could get a free pass to discriminate. As the judge explained, “sex plus” would cause the statute’s death by a thousand cuts, freeing employers to disqualify ever-wider groups of women workers simply by including a “plus” characteristic in their policies that they didn’t also apply to men—barring women who were below a certain weight, for instance, or whose biceps were too small. He made a grave prediction: “If ‘sex plus’ stands, the Act is dead.”

* * *

‘People keep stealing our stewardesses,’ underneath a cartoon of a man furtively absconding with a flight attendant, mannequin stiff, his hand clamped over her mouth.

Whatever trouble Marshall had had garnering national interest in the case ended when the Court agreed to decide it. “High Court to Hear Sex Discrimination Test” read the headline in The New York Times, while Martha Griffiths, the Michigan congresswoman who had taken the lead in ensuring the “sex” provision was included in Title VII, was quoted registering her outrage about the case. “I’m going to move to impeach the entire court” if it affirms the Fifth Circuit, she proclaimed, “because they are obviously not enforcing the laws as they are written.”

Amicus briefs also started rolling in now. The U.S. solicitor general, the lawyer who represents the United States in legal matters, stepped forward to provide the federal government’s support, as did the EEOC, while NOW—by then four years into its existence—and the American Civil Liberties Union and Human Rights for Women each filed a brief.

Those submissions sought to build on the cert petition, specifically by bringing the justices up to speed about the realities of the modern family. The stereotype of a two-parent household, in which the husband earned enough so that the wife could stay home with the kids, was simply a thing of the past. As of 1969, only about half of American families fit that mold, according to Department of Labor figures. The reality was that nearly 40 percent of the nation’s families were dependent on women’s wages; in 30 percent of those families, both spouses worked, while in nearly 8 percent of them, a woman was the sole breadwinner. Notably, 35 percent of those female-headed households were below the poverty line, and in African American families, women’s wages were more important yet. Indeed, the stereotype of a stay-at-home mother never had applied with equal force to black women.

The amicus briefs also spelled out the sheer numbers of women who would face job loss were the Court to approve the “sex plus” doctrine and allow other employers around the country to follow suit. Of the 37 percent of women in the American workforce, a little more than a third were mothers of children age eighteen or under. Of those more than ten million women, four million had children who were preschool age. If additional “plus” factors were permitted by the Court, the numbers skyrocketed. As the ACLU pointed out, policies excluding various “plus” categories of women could be catastrophic. Excluding women whose “plus” factor was being married, for instance, would knock 17.5 million married women out of their jobs; sex “plus” being divorced would bar 1.6 million women from the workplace; sex “plus” being widowed would mean 2.6 million additional women were excluded.

Nor was the ban on married women strictly hypothetical, as detailed in an amicus brief submitted by the Air Line Stewards and Stewardesses Association. The ALSSA was the labor union representing the flight attendants for seven of the nation’s major airlines, totaling thirteen thousand people—twelve thousand of them women. Flight attendants had a great deal on the line in Phillips. After Title VII was enacted, female flight attendants were among the first to utilize the ban on sex discrimination, challenging the panoply of regulations from which their male colleagues were exempt: maximum weight restrictions, age limits (mandating retirement no later than age thirty-five), rules forbidding pregnancy, and marriage bans—all of them policies designed to reinforce flight attendants’ image as sexually available eye candy for their (mostly male) passengers as they lit cigars, mixed Manhattans, and fluffed pillows.

As Gail Collins recounted in When Everything Changed, the average tenure of a flight attendant in the 1960s was just eighteen months, thanks to rules requiring women to quit if they got married. Some airlines even used this turnover as a marketing ploy. An American Airlines ad from 1965 featured the caption, “People keep stealing our stewardesses,” underneath a cartoon of a man furtively absconding with a flight attendant, mannequin stiff, his hand clamped over her mouth. “Within 2 years, most of our stewardesses will leave us for other men. This isn’t surprising. A girl who can smile for 51⁄2 hours is hard to find. Not to mention a wife who can remember what 124 people want for dinner. (And tell you all about meteorology and jets, if that’s what you’re looking for in a woman.)” The ALSSA told the Court that an opinion upholding “sex plus” would be disastrous for its membership. It detailed all of the age, pregnancy, and marriage policies that the major airlines had rescinded after Title VII’s enactment and warned that a ruling in Martin Marietta’s favor could undo such progress.

It was “like manna,” said Reese Marshall, to have so many people weighing in on Phillips’s side before the Court. “We were just so amazed that we had all of these great and wonderful people stepping in to help.”

* * *

To read more about Ida Phillips, who eventually won her case before the Supreme Court, and the others that followed in her footsteps, read Because of Sex by Gillian Thomas.

* * *

From Because of Sex by Gillian Thomas. Copyright © 2016 by the author and reprinted by permission of Palsgrave Macmillan, an imprint of St. Martin’s Press, LLC.


from Longreads Blog https://blog.longreads.com/2016/07/07/women-were-included-in-the-civil-rights-act-as-a-joke/

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