APRIL 27, 2016
IN 1964, 80-YEAR-OLD Congressman Howard Smith inserted the word “sex” into a proposed amendment to Title VII of the Civil Rights Act. For much of the United States’s history, women had been subjected to Jane Crow laws that blocked their entry into the workforce, but here, a man otherwise known as an “unrepentantly racist, male octogenarian,” proposed that in addition to prohibiting employers from discriminating against employees on the basis of race, color, national origin, and religion, they should be prohibited from discriminating based on sex as well. His male cohorts laughed at his “little amendment.” The 12 women then serving in the House of Representatives tried to silence the laughter, but the male-dominated Congress treated the change as a joke. Dubbed “Ladies Day in the House,” the Act passed with language that would ultimately change the lives of women in the United States.
Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women’s Lives at Work by Gillian Thomas pays tribute to the women who fought for respect and equality in the workplace just before and then after the passing of Title VII of the Civil Rights Act. Learning about their struggles inspires us to continue their fight. Women today are paid only 79 cents to a man’s dollar — the struggle over workplace equality continues. But knowing the giants upon whose shoulders we stand inspires us to look further into the future.
The road to equality was built on the sweat and tears of ordinary women who were hopeful enough to think that our laws would protect them. Yet the protection of those laws, especially Title VII, did not materialize from thin air. Government lawyers did not ride in on their white horses to save the day; employers did not open their doors and welcome women workers to their ranks. As this book so beautifully explains, it took serious effort, and even minor miracles, to overturn paternalistic, misogynistic policies of yore and create a place for women in the workplace.
When Title VII first passed, there were only three women federal judges in the country. The newly established US Equal Employment Opportunity Commission (“EEOC”) did not take women’s rights seriously. Its first chair, Franklin Roosevelt Jr., when asked, “What about sex?” answered: “Don’t get me started. I’m all for it.” The legal profession openly spurned the idea that all jobs should be open to both sexes. Equal rights were trivialized by calls for hairy-legged men to be hired as Playboy Bunnies.
However, for the average working woman, Title VII was no joke. They had no choice but to fight. Their survival — and that of their families — often depended on it. The women whose cases are talked about in this book are not household names. They were clients who began their foray into the justice system with the questions, “Why me? Why did this have to happen to me?”
The book begins with the case of Phillips v. Martin Marietta Corp. in 1971. Ida Phillips was not looking to be a heroine. She just wanted to support her family. Her alcoholic husband would drink away his meager wages, and they had seven children. She did not just want to work; she had to work. Therefore, she applied to Martin Marietta for a job on the assembly line. At $125 per week, it paid more than double what she was earning as a waitress at a Donut Dinette. But the company would not even accept her application because she had a preschool-age child. Not knowing what else to do, Phillips wrote to President Lyndon Johnson. Ultimately, her case ended up at the US Equal Employment Opportunity Commission, but they had little to offer. If she was going to prevail under a new law, she needed a lawyer.
As with the civil rights movement in general, it was a young, idealistic lawyer — Reese Marshall with the NAACP Legal Defense and Educational Fund — who stepped up to help. The support organizations of today, including the American Civil Liberties Union’s Women’s Rights Project or the National Women’s Law Center, did not yet exist. Not surprisingly, Marshall lost before the lower courts. They found Martin Marietta hadn’t discriminated “because of sex” because the company didn’t exclude all women, just some women. They also accepted the company’s argument that all mothers would care more for their children than their jobs and, therefore, that there was a bona fide occupational qualification (BFOQ) that an applicant not have young children. Against all odds, Phillips won before the Supreme Court. Bill Robinson, also from the NAACP, argued the case, his first before the High Court. With the help of amicus curiae briefs, he dispelled the stereotype of a two-parent household. Even then, 40 percent of all American families depended on women’s wages; 35 percent of female-headed households were below the poverty line. The pressure was enormous. Wholesale exclusion of women with children from the workplace would have been nothing short of catastrophic.
But Robinson prevailed, at least at requiring companies to show evidence to support their claims that women could be excluded because of BFOQs. Phillips did not become rich from the case and tragically died quite young. But she had accomplished something with her life. As she put it, “[This case was] my way of letting people know that I’m more than just a dumb little waitress.”
Indeed, one of the most important themes of this book is that the struggle for women to win their Title VII cases has been as much or more about principle than financial compensation. For Brenda Mieth and Dianne Rawlinson, who wanted to be Alabama state troopers or correctional officers, their goal was to serve. Yet, they faced arbitrary roadblocks to their employment.
When Rawlinson was rejected, she was “heartbroken, angry, and unsure what to do next.” So, she took a job shampooing hair. It was the best move she ever made. Rawlinson met a young attorney there who took her case and she, like the other women whose cases are discussed in the book, ended up strengthening women’s rights under Title VII.
Was it easy for these women? No. Women fighting for their rights endured cross burnings on their lawns and threats of physical violence. But they fought for as long as they could, and when they got tired of fighting, other women stepped in to take their place in line. One of the women lawyers on the front line was now-Supreme Court Justice Ruth Bader Ginsburg.
Case by case, Because of Sex captures the intensely personal nature of the struggle for equal employment rights. Once Title VII was passed, women were no longer willing to accept discriminatory policies just because “that’s the way things are.” Women have had important allies in this fight. One is Judge Harry Pregerson, the hero of City of Los Angeles Department of Water and Power v. Manhart, which safeguarded women’s retirement benefits.
Some of the most wrenching material in the book relates to the environments in which women have had to work — “hostile work environment” doesn’t come close to describing the trials and tribulations women in the workforce had to face. Mechelle Vinson, a petite African-American woman who desperately needed a job, was fondled and sexually assaulted on a regular basis. Her boss boldly told her, “I don’t want appreciation […] I want to go to bed with you […] Just like I hired you, I’ll fire you, just like I made you, I’ll break you, and if you don’t do what I say then I’ll have you killed.” Hard to believe that this would be a tough case for the courts, but it was. Vinson was attacked; the defendant claimed that his advances were welcome.
One of the brilliant aspects of this book is how it intertwines political history with developments in the law. Vinson’s case hit the court just as Clarence Thomas took over leadership of the EEOC. Suffice to say, Thomas was not a huge supporter of “hostile environment” claims. Women had to navigate around the politics just to get their cases heard. As one plaintiff said when the defendant tried to wear her down in court, “I will sell every fucking thing I own, I will not stop […] I’m talking Sandra Fucking Day O’Connor […] I told [him I was going to take his ass all the way] and I am not a liar.”
In the end, this book is about the sacrifices women have made for women. It is about the 20-year-old who came up to Vinson after she won and kissed her because up until then, she didn’t know what to do. It is about Vinson’s inspiring words for all of us — “Let no one treat you that way.” It is about Lillian Garland who lost her job, her marriage, and her child, but never gave up. It is about all of us and the commitment we will make to ensure dignity, respect, and equal rights for the average women who make this country great.