In full public view, on the floor of the House of Representatives during the debate on what became the Civil Rights Act of 1964, sex was added to the list of characteristics to be protected from employment discrimination. But why this addition was made remains an intriguing mystery.
Representative Howard W. Smith of Virginia, chairman of the House Rules Committee and a diehard segregationist who had done his best to kill the bill, introduced a floor amendment that added sex to a list that prominently included race, religion, and national origin. What was he trying to accomplish? Recent scholarship displays a surprising lack of consensus about this question. Clay Risen’s The Bill of the Century: The Epic Battle for the Civil Rights Act (2014) claims that Smith added sex to the mix as a poison pill, “a move that he hoped would turn off congressional male chauvinists.” Indeed, the amendment’s introduction was greeted on the House floor with laughter and macho banter.
A more complex account in Todd S. Purdum’s An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 (2014) presents Smith as a bit of a feminist. Whatever his “deepest motives,” Purdum notes, Smith was actually a longtime supporter of women’s rights. His door was open to lobbyists from the National Women’s Party, which was a vocal supporter of bringing sex discrimination under the bill’s protective umbrella. Yet according to still another account in Fred Strebeigh’s Equal: Women Reshape American Law (2009), Smith later told Representative Martha Griffiths of Michigan that he introduced the amendment as “a joke.”
In Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work, Gillian Thomas focuses on the afterlife of the Smith amendment as part of the Civil Rights Act’s Title VII, which deals with employment. (Other titles concern voting, education, and access to public facilities and public “accommodations,” meaning hotels, restaurants, and other private businesses serving the public. Title IX, a law we hear much about these days, is not part of the Civil Rights Act but of a different law, the Education Amendments of 1972.) Thomas, a lawyer with the American Civil Liberties Union’s Women’s Rights Project who has litigated sex discrimination cases for many years, is interested not in how Title VII’s “because of sex” clause came to be, but in what has become of it since. She does mention several theories about Smith’s possible motives. Perhaps the wily politician was responding to the worry among southern politicians that if Title VII prohibited race but not sex discrimination, black women would benefit from the law while white women got nothing. (In fact, the Smith amendment passed the House by a vote of 168–133, with support coming mostly from Republicans and southern Democrats.)
The ambiguous circumstances of the provision’s birth matter, I think, in two ways, both implicit in Thomas’s account of its subsequent life. The first is that coming into the world as it did, taking Congress by surprise without an official legislative history, the provision lacked not only a consensus but a coherent account by its supporters of its core meaning and intent. Contrast this with the race discrimination provision of Title VII and with the Civil Rights Act as a whole. Their origin and development were clear to all, a contentious enactment changing into a celebratory morality tale.1 Thomas notes that when Franklin D. Roosevelt Jr., the first chairman of the Equal Employment Opportunity Commission (EEOC)—which was established in 1965 by Title VII to enforce the law—was asked by a reporter, “What about sex?” he answered: “Don’t get me started. I’m all for it.” It’s inconceivable that an EEOC chairman, in a public appearance, would have joked about race discrimination in the same way.
The second point about the provision’s ambiguous beginnings follows from the first: what ultimately counted was not what Howard Smith thought, or whether those who voted for his amendment did or did not regard it as a joke, but rather how it fared in the hands of those who invoked it, litigated it, interpreted and enforced it. This is the story that Thomas tells through freshly reported accounts of ten cases decided by the Supreme Court from 1971 through last year. Of course plaintiffs have not won every Title VII sex discrimination case, but they won (with occasional asterisks) the ten that Thomas has selected, each victory adding content and meaning to a statutory provision that at its inception had little of either. The message is that what matters a good deal more than a statute’s birth is its life—including, but not limited to, its life in the hands of the justices of the Supreme Court.
It’s an obvious point, but one that is too often lost. The bare statutory language that emerges from Congress is only a beginning. Stingy interpretation and enforcement can strangle a new law in its cradle, while political winds blowing in a new direction can raise it to unanticipated heights. One current example of the latter is the Religious Freedom Restoration Act (RFRA), a feel-good piece of legislation passed by overwhelming bipartisan majorities and signed into law by President Bill Clinton in 1993. Nearly a quarter-century later, in the hands of a politically energized religious right with friends on the Supreme Court, RFRA is a potent weapon invoked by religious business owners and charitable organizations to justify noncompliance with rules that apply to everyone else.
The implication of RFRA will be decided in Zubik v. Burwell, a pending Supreme Court case on the Affordable Care Act’s requirement that employers make free birth control available as part of employee health insurance plans. In the case, a number of religious charities argue that RFRA prevents the government from asking them to sign a form requesting an exemption. They insist that the very act of availing themselves of the opt-out procedure the Obama administration has provided would, by enabling alternate coverage to kick in, make the employers complicit in their employees’ sin of using the insurance coverage to buy and use birth control. Presumably, the justices will tell us shortly whether that’s what RFRA really means.
Given its inauspicious beginnings, Title VII’s prohibition against employment-related sex discrimination has proven surprisingly robust, and its core protections are now mostly taken for granted. Thomas makes clear that this happy outcome was by no means inevitable. Rather it was the result of courageous plaintiffs, driven by their sense of having been wronged by the men they worked for and with; of lawyers with enough imagination to suppose that Title VII might offer relief; and of justices who understood that relief was needed. Each of the ten decisions not only awarded victory to the plaintiff but expanded the boundaries of what the law recognizes as sex discrimination.
At first glance, the answer to the question “What is sex discrimination?” seems obvious enough: treating men and women differently, because of sex. But at second glance, considering that men and women actually are different in ways that might have some relevance to the workplace, complexities soon emerge. Women have babies, and many of the early cases dealt with the consequences of employers making and not making accommodations for pregnancy and childbirth—regardless of whether women wanted the accommodations, or even whether they intended ever to become parents.
Women’s childbearing capacity had long been the reason for protective legislation, which, however benign its motivation, had the effect of sharply limiting workplace opportunities for women. In Muller v. Oregon (1908), the Supreme Court upheld an Oregon law that barred employers from permitting women to work more than ten hours a day in laundries or factories. Just three years earlier, in the famous (or infamous) Lochner v. New York case, the Court had invalidated a law that placed a similar restriction on the working hours of male bakers. But in the Oregon case, noting the physical duress imposed by long working hours, the Court concluded that “as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.”
In the late 1970s, as public concern grew about the dangers of exposure to toxic substances in the workplace, manufacturing industries began putting “fetal protection” policies into place, moving women off the production line and barring their return until they went through menopause or chose voluntary sterilization. Were these companies worried about the health of their female workers and potential offspring, or about their own balance sheets? And what did Title VII have to say about it?
Thomas tells the story of the United Automobile Workers’ suit against Johnson Controls, a battery manufacturer that transferred all women capable of becoming pregnant off the assembly line while at the same time doing nothing to remedy the complaints of male workers, some of whom planned to father children and were worried about the high levels of lead in their own blood. The union brought the case as a class action along with three individual plaintiffs: one woman who had undergone sterilization in order to keep her job, which paid considerably more than she could earn elsewhere; one fifty-year-old divorced woman; and one man who planned to become a father.
Two lower federal courts had ruled against the plaintiffs, but in 1991 the Supreme Court ruled unanimously in their favor. Justice Harry A. Blackmun, writing for five justices, declared that “the bias in Johnson Controls’ policy is obvious.” Noting that fertile men were given a choice to put themselves at risk while fertile women were not, he said the policy “explicitly discriminates against women on the basis of their sex.” Justice Blackmun cited Muller v. Oregon in observing that “concern for a woman’s existing or potential offspring historically has been the excuse for denying women equal employment opportunities.” But in Title VII, he concluded, “Congress has left the choice to the woman as hers to make.”
Four justices agreed with the outcome of Justice Blackmun’s decision but deemed the opinion too sweeping in foreclosing defenses the company might make. (The case had never gone to trial.) In his separate opinion, Justice Antonin Scalia wrote:
I think, for example, that a shipping company may refuse to hire pregnant women as crew members on long voyages because the on-board facilities for foreseeable emergencies, though quite feasible, would be inordinately expensive.
Clearly, there’s a good deal more to say about the issues raised by the Johnson Controls case and fetal protection policies in general. What of a company’s obligation to provide a safe workplace for all its employees? What priority did the union place on negotiating better working conditions? Thomas refers to the fact that the litigation began in the deregulatory climate of the late 1980s; the Equal Employment Opportunity Commission, taking an overly generous view of an employer’s available defenses, was no help. When the Supreme Court case ended, women seeking well-paying unionized manufacturing jobs in dangerous settings had been handed a choice between working in hazardous environments or not working at all, but it was the same lousy choice their male coworkers always faced.
The book’s one-case-at-a-time structure risks blunting full recognition of the prominent—dominant is perhaps the better word—part that women’s reproductive capacity has played in the evolving struggle for full equality. Thomas begins with Phillips v. Martin Marietta Corporation, a 1971 case in which the Supreme Court, in a unanimous, unsigned opinion, held that an employer violated Title VII by refusing to hire women with preschool-age children. She ends the book with a case decided in March 2015 in which a woman who delivered packages for United Parcel Service, and whose doctor recommended that she lift nothing heavier than twenty pounds during her pregnancy, challenged the company’s refusal to give her the same accommodation it offered some employees temporarily unfit for duty for other reasons.
The book thus spans forty-four years, and this most recent case, Young v. United Parcel Service, underscores the contested status, after all those years, of a woman who is pregnant, or who might become pregnant, or who is trying to avoid a pregnancy or seeking to terminate one—or who, in a society that celebrates motherhood but offers little assistance to mothers, has actually given birth to a baby. To grasp the persisting ambiguity that surrounds pregnancy in the workplace requires an account of what happened between 1971 and 2015.
In 1978, Congress enacted the Pregnancy Discrimination Act (PDA), in response to a Supreme Court decision two years earlier that refused to recognize discrimination on the basis of pregnancy as sex discrimination within the meaning of Title VII.2 An amendment to Title VII, the PDA provided that women affected by pregnancy and childbirth “shall be treated the same” for employment purposes “as other persons not so affected but similar in their ability or inability to work.” Phrased in this way, as Thomas explains, the PDA was a victory for the “equal treatment” wing of 1970s feminism. These activists, wary that requiring any special accommodations like maternity leave would lead to the kind of paternalism exemplified in Muller v. Oregon, insisted that pregnancy simply be treated “the same.” But “the same” as what?
That was the question at the center of the case of Peggy Young, the pregnant UPS driver. UPS didn’t make allowances for all temporary medical conditions, only some, and pregnancy was not one of them. During oral argument on December 3, 2014, Justice Scalia accused the plaintiff’s lawyer of seeking a “most favored nation” status for pregnancy by arguing that special allowances be made for it but not for other conditions. The case ended inconclusively nearly four months later with a 6–3 decision that rejected each side’s basic arguments and sent the dispute back to the appeals court that had granted summary judgment to the company.
“We doubt that Congress intended to grant pregnant workers a most-favored-nation status,” Justice Stephen G. Breyer wrote for the majority. Rather, he said, a pregnancy discrimination case should proceed the same way as other Title VII cases. An employee initiating a pregnancy discrimination lawsuit, he said, would have to show with more specificity than Young did that nonpregnant employees with similar limitations—instruction to lift no more than twenty pounds, in her case—got better treatment. The employer would then get the chance to explain that the distinction reflects a reason unrelated to pregnancy. Finally, the plaintiff would try to show that the employer’s proffered explanation is really a pretext for discrimination against her because she is pregnant.
By the time Young v. UPS was argued, the company had responded to the unwelcome publicity by changing its policy to offer future pregnant employees the type of accommodation that Young had sought. The case never went back to the lower courts; the parties reached a confidential settlement last fall. By that time, Young’s daughter was seven years old.
Many of the cases discussed in Because of Sex end in similar bittersweet fashion. The cases made new law, to the benefit of untold numbers of female employees of the future, while the plaintiffs themselves, having often spent years in dogged pursuit of their view of justice, reaped few tangible rewards. It is a story familiar to anyone who dares to challenge the system. This was made clear in The Good Girls Revolt (2012), Lynn Povich’s engaging insider’s account of the Title VII suit that female employees brought against Newsweek in 1970 for its unfair hiring and promotion practices. Povich quotes Betsy Wade Boylan, a New York Times editor whose career stalled after she became the lead plaintiff in a similar suit that women brought against the Times in 1974. “We did a brave and a noisy thing and we knew it wasn’t going to be for us,” Wade told Povich. (Women with more than twenty years at the Times received $1,000 when the case was settled in 1978; those with shorter tenure received proportionately less. My own check was big enough to take a few friends to dinner.)
Based on extensive interviews as well as court records, Because of Sex displays both the strengths and weaknesses of its reliance on anecdote-rich narrative. Gillian Thomas gives well-earned attention to women who remained unknown even as the causes they fought for gained support and the legal actions they brought entered the casebooks under their names. On the other hand, the book’s exclusive focus on Title VII necessarily omits the parallel and even more complex story of how constitutional meaning has evolved to encompass a broader vision of the Fourteenth Amendment’s guarantee of equal protection. At the time the Civil Rights Act became law in 1964, the Supreme Court had not in any way suggested that the Equal Protection Clause had anything to do with women. The cases that created a constitutional jurisprudence of women’s rights also bear the names of unsung plaintiffs—a number of whom, in cases that the young Ruth Bader Ginsburg brought to challenge the stereotyped roles that law and society assigned to men and women, were men.
A message of this book that lingers is that litigation is not for the fainthearted. By the end of their long slogs through the judicial system, many of the plaintiffs, Moses-like, glimpsed a promised land of true equality that they themselves couldn’t enter. Thanks to them, we see its outlines more clearly. But we still wait.
Robert Schenkkan’s play All the Way tells the story of Lyndon Johnson’s triumphant stewardship of the bill. The play ran on Broadway in 2014 to great acclaim and is being revived in the current political season by Arena Stage in Washington, D.C. ↩
General Electric Co. v. Gilbert, 429 U.S. 125 (1976). The subject of the case was a disability policy that covered temporary disabilities except for pregnancy. The Supreme Court reasoned that the company wasn’t discriminating between men and women, just between pregnant women and “non-pregnant persons.” ↩