Hal Draper & Stephen F. Diamond

The Hidden History of the
Equal Rights Amendment

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9. Title VII Takes
the Trick

The 1950–1953 push for the E.R.A. had emerged from the favorable post-war climate; it was a weak analogue of the feminist drive that had followed the First World War and which had ended with the suffrage victory. But by the time the 1953 session of Congress was over, the climate had chilled: the country was well into both the Cold War and the “McCarthyite” period, in which Senator Joe McCarthy witchhunted the Truman administration and the Truman administration witchhunted “reds.” The swing to conservatism in political style pushed the E.R.A. – which presented knotty problems to conservatives – into the background. (We will have another word to say on this climate at the beginning of the next chapter.)

In fact, the next time the E.R.A. reached the Senate floor, in July 1960, support for the Pure amendment was very weak. Senator Lyndon Johnson routinely introduced the resolution with no supporting argumentation and immediately turned the floor over to Senator Hayden, who proposed his amendment as before. In the course of doing so, he made two arguments. One we have already seen: without the Hayden amendment, no two-thirds majority could be gained to put the resolution through. The second argument was that this amendment was the only way to prevent the ambiguously worded Pure E.R.A. from being tied up in the courts for years to come – by “an infinite number of lawsuits and in endless litigation.” [1]

Before court interpretation could clarify the intent and meaning of the joint resolution [the E.R.A.], many years would elapse during which it is not only possible, but probable, that rights, benefits and privileges now enjoyed by women throughout the United States would be denied to them.

Thereupon the Hayden amendment was added to the resolution (that is, to the Pure form) by a mere voice vote! Taken aback, Senator Butler – the 1953 floor manager for the Pure E.R.A. – moved to send the resolution back to the Judiciary Committee, and this was done. Butler’s words reflect the strangeness of this whole episode:

It is a very strange procedure that a proposed constitutional amendment should be brought before the Senate apparently with no sponsor and nobody to manage the joint resolution. To say the least, I was shocked when the Amendment offered by the Senator from Arizona [Hayden] was accepted, on a voice vote, after very little debate, with no one to present the other side.

He, Butler, disclaimed the post of manager of the resolution, but asked the Senate to have the “courtesy” of conferring a “parent” on the thing. On the other side, Hayden certainly did not object to having the issue referred back to the committee, where (he said) his side would provide testimony in its favor at hearings to be held. No hearings were ever held. In this Strange Interlude, no one was very eager to get involved with the E.R.A. issue.

This is how the situation remained for the decade or so during which the political climate of the country went through a big change, the Great Hiatus of the American left, the period which marked the broken line of continuity – between the old alliance of liberals and left around social-feminism, on the one hand, and on the other the peculiar “New Left” that arose in the 1960s, especially the mid-’60s. [F]

Whatever the reasons, the E.R.A. remained frozen in place on the Congressional calendar for over a decade. When the issue of women’s rights began to thaw out in the ’60s, it first popped out of the legislative locker in unexpected fashion, indeed semi-accidentally. To wit: in the Civil Rights Act of 1964, which we have already mentioned.

This development was not the outcome of a push by a feminist movement; the “New Feminism” had not yet come into existence; Washington was still being cultivated by the Business and Professional Women’s federation (B.P.W.), about which there was nothing new.

The Civil Rights Act was drawn up to ban discrimination on the basis of race, color, religion, or national origin. Under its Title VII, the section on employment, the word sex was inserted in addition. This proposal came not from liberals, nor from the politicians who made orations in favor of Womankind whenever the E.R.A. came up. It came from conservative Southerners in a maneuver to get the bill killed.

Here, for example, is the account by Robert Smuts in his Women and Work in America:

When Judge Smith of the Rules Committee expanded the bill to prohibit discrimination based on sex, he believed that he was giving the coup de grace to a bill designed to outlaw discrimination based on race. He could not believe that his colleagues would consider giving broad federal protection to women by preventing their being discriminated against in the work arena. But Congress passed the Civil Rights Act with the provision on sex discrimination included. [2]

The Southerners had miscalculated; the pressure for civil rights was stronger than they believed. So the racists got an installment of women’s rights into the law, without a provision to preserve women’s protective legislation. [G]

The N.W.P. proceeded to use the new Title VII as their tool in their continuing battle against protective legislation for women. For example, in early 1967 the same N.W.P. ex-chair whose probity we have footnoted, Ernestine B. Powell, in response to directives from Alice Paul, joined the National Association of Railroad Businesswomen in a lawsuit against the state of Ohio in order to wipe out a state law limiting the working hours of women railroad employees. The Columbus Dispatch wrote it up as a sort of crusade:

A phone call came from headquarters. The order: turn Ohio into a battleground. The fight, as old as Adam and Eve, is equal rights for women. The hour of the battle will depend on what the Ohio legislature does with protective legislation for women during the present session. The call came to Columbus attorney Ernestine B. Powell from the Washington D.C. headquarters [of the N.W.P.] who was marshalling her forces for a skirmish in Ohio, using this state as a test case of Title VII of the Civil Rights Act of 1964. [5]

The N.W.P. drive to wipe out protective legislation had many successes, but Title VII was a more limited instrument than a Pure E.R.A. would have been; to take one example, it applied only to employers of 25 or more employees. The consequences of Title VII were also more mixed than a Pure E.R.A. would be, but we cannot here take the space that would be needed to sketch all the intricacies of this legal machinery. We are here concerned with a secondary effect, namely, the impact on the fight around the passage of a Pure E.R.A. in addition to Title VII.

The agency set up to implement Title VII was the Equal Employment Opportunity Commission (E.E.O.C.). It dealt mostly with racial discrimination in hiring, but, since the sex issue had been written in the commission began to enforce this provision too, after some hesitation. This led to a confrontation with the “protective laws” of the states much like the confrontation expected to result from a Pure E.R.A.

The E.E.O.C. tended to rule that, when there was a claim of conflict with women’s labor legislation, Title VII superseded the states’ laws. In 1969 it laid down as its guiding principle that the state laws are irrelevant and in conflict with Title VII. Thus, at least in part, the drive to destroy the whole body of labor legislation for women came in fact not from the passage of a Pure E.R.A., as had been feared, but came from this unplanned quarter.

The element of chance and accident is not as important as may appear. For a half century and more, powerful interests had been probing this and that avenue of approach to “get” those labor laws, to undercut them in any way possible – like a cruel wind whistling around a hut to find a chink to penetrate. Since the 1920s their main hope had been some sort of manipulation in the name of women’s rights. That this usually took the form of the E.R.A. proposal was due to the post-1920 possibility of an alliance with the “business and professional” feminists; it was not a necessity from the standpoint of the interests. From one viewpoint, Title VII had an advantage over the E.R.A. as an instrument because its positive side was helpful in disarming or confusing opposition. And it had a positive side.

A number of states jumped in alertly to use Title VII as a pretext for repealing their labor legislation for women completely. The pioneer state, which annulled all such laws in 1967, was Delaware – the very one that notoriously has a special relationship with corporation structures. A number of other states got rulings from their attorneys general stating that Title VII superseded the offending laws. Other states began amending their laws, sometimes in ways that would be satisfactory to labor – for example, in order to exempt women in supervisory situations. Some changes hit at the most vulnerable pieces of legislation, such as blanket restrictions on work hours and on weight-lifting.

What this meant for the most vulnerable women workers can be best described in the words of an authoritative voice for women trade-unionists, a trade-unionist who spoke out for tens of thousands of women whose labor representatives had been coopted by the Pure feminists just as many other union representatives had been coopted by management and its interests.

This was Myra Wolfgang, who, as we have seen [6], was no flaming radical. An officer of the Hotel and Restaurant Employees Union, she had been a long-time admirer of the Auto Workers’ union (U.A.W.) and its militant past. Here the operative word is past. She was disheartened by what had happened to that union by now, including its abdication not only before the auto giants but before N.O.W. In her 1970 testimony on the Pure E.R.A. before the Senate Judiciary Committee, she presented a slice of history that rarely makes its way into print, especially a slice of reality about the assembly lines of Michigan.

Wolfgang’s target was a claim by the Business and Professional Women’s federation, made in one of their booklets, a claim which has been endlessly repeated by E.R.A.-feminist propaganda. The B.P.W. booklet stated that “the days of sweat shops and intolerable working conditions, in which exploitation of women workers went rampant, are largely passed. The notion that women are frail and require special protection is obsolete.” This claim has been repeated by N.O.W., in Ms magazine, and in political orations, without the least semblance of a scientific investigation.

Wolfgang replied first with an ad hominem – or rather ad feminam – thrust: “The days of exploitation are not over for thousands of women workers among the domestics who work in the homes of the Business and Professional Women!!” She went on:

They were not over for thousands of Michigan women who worked without the protection of the State’s hour limit laws during a three-year period in 1967 and the beginning of 1968.

She set out a review of “what occurred in Michigan.” It is a paradigm of what happened to real workingwomen while they were being told that “intolerable working conditions” were as dead as the Ford company’s goon squads.

In the 1967 session, the Michigan Legislature passed a Senate Bill 199 which repealed Section 9 of Act 285, the 10-hour day-54 hours per week hours law for women. The same session of the Legislature passed Senate Bill 225 establishing an Occupational Safety Standards Commission which was mandated to establish codes of occupational standards for the protection of “life, health and safety of employees” in all areas covered by Act 285 (proper ventilation, toilet facilities, adequate wash and dressing rooms, seats for females, safety devices, hours laws, etc.).

In March 1968 the state attorney general, Frank Kelley, ruled that the new Bill 225 went into effect prior to the repealer, Senate Bill 199. There was confusion. Wolfgang comments:

Legislators from both houses confessed complete ignorance as to why conflicting bills were passed. They assumed “women” wanted overtime. The secrecy with which this legislation passed (no hearings, no floor discussion) leaves no doubt, somebody knew the full repercussions of the repealer. The YWCA, the Council of Catholic Women, the Council of Jewish Women, and most major women’s groups and unions cheered the Attorney General’s decision to reinstate the 54-hour maximum work week for women.

With this reinstatement of the maximum work week –

the Women’s Department of the U.A.W. dropped all pretense of wanting protective hours legislation for both men and women and blatantly offered to join the employers of Michigan in upsetting the Attorney General’s opinion.

“This,” added Wolfgang, “came as a complete shock to me since I am an admirer of that union.” The U.A.W.’s shocking position was sent to the employers by the union’s legal department, which told the employers: “We stand ready to give you whatever assistance we can in that endeavor” – the endeavor being the destruction of hours limitations for women workers.

That destruction was accomplished by the state Occupational Safety Standards Commission, which, after holding hearings, issued a regulation repealing the hours limitation laws for women.

Then [related Wolfgang] the women of Michigan really became incensed, swung into action and formed an Ad-Hoc Committee Against Repeal of Protective Legislation. An outpouring of support came from [the ranks of] all major women’s organizations, church groups and labor unions, including many U.A.W. local unions. Thousands of women signed petitions urging the reinstituting of the hours law and supported litigation started to request the court to restrain the Occupational Safety Standards Commission from repealing the hours law.

The suit was started by Stephanie Prociuk, a worker at the Hamtramck Division of Dodge, a U.A.W. shop steward and local committeewoman, the sort of militant in the ranks of this union that had once gained it the admiration of people like Myra Wolfgang. She had 33 years’ seniority; she was single; she was the sole support of, and nurse to, her 81-year-old invalid father. Her testimony before the court made clear that the new regulation meant that Dodge could force overtime on her; that the forced labor of involuntary overtime would do “irreparable damage” to her and 200,000 other women represented by the Ad-Hoc Committee.

Her testimony [to return to Wolfgang’s account] revealed that Dodge did just that while the law was thought to be inapplicable in the late fall and winter of 1967–68. During that period, she testified, she was called upon to work 69 hours a week: six days at 10 hours; on Sunday the company relented and had her work only 9 hours.

There were personal complications in this case: “She testified that forced overtime kept her from properly caring for her father, causing her undue worry and concern. She said she could not afford either a nurse or housekeeper, did her own housework, including her laundry” – in addition to the 69 hours, of course. How unusual were such “complications”? Wasn’t it true that a very large proportion of women had “complications” of one sort or another? She saw the “complications” about her at work:

She testified that women dropped out with fatigue and exhaustion and had to be removed by stretcher. This, gentlemen, took place in 1968 – not at the turn of the century! ... She said her union was powerless to do anything about it and that the women’s department of the union [U.A.W.] actually opposed any law “favoring women only.”

Consider some typical “complications.”

After two days of this testimony, a circuit court judge ruled that the regulation repealing the hours limitation was invalid. Judge George T. Martin summed up the facts in favor of protecting women workers “against exploitation and hazard.” While “some women” would cope, he said, “the great majority of working women feel that if they could not cope with additional overtime hours, they would be forced to either quit or else be fired and thereby suffer dire personal economic consequences.”

The relief of “the great majority of women” was short-lived. At the end of 1969, the state attorney general, Frank Kelley, found a more effective ground for destroying the state’s hours limitation for women workers. It was Title VII, and the E.E.O.C.’s guidelines for administering it. He issued an opinion, and lo, it was law.

The testimony about the real world – and real women – that had figured in the circuit court’s hearing on the social problem was dismissed with a snap of Attorney General Kelley’s opinion: “Since Michigan has no law limiting the number of hours a man may work, a woman is denied the same rights of overtime compensation as her male counterpart in direct violation of the Federal Act.” Plainly, Mr. Kelley was exercised about women’s equality, was he not? – though he had not previously been one of the paladins of women’s rights. Let us note also that his opinion gave short shrift to the repeated assurances by E.R.A.-feminists that the effect of E.R.A. in such cases would be to extend good laws against exploitation to men as well as women. This “extension to men” solution did not warrant two words from the good attorney general.

Under the aegis of Title VII, as its potentialities unfolded, the climate hanging over the fate of women’s labor legislation became that of a rout. Laws benefiting workingwomen were clubbed down on all sides, in state after state, to the accompaniment of triumphant cries from the business and professional feminists and the Pure philosophers of equality.

When the Illinois telephone company smashed the state’s eight-hour work-day restriction, it explained with laudable candor that it saved money by paying women for overtime rather than hiring additional workers; nor did it claim to be motivated by enthusiasm for Justice. The women who were not employed as a result of this feminist “victory” existed only as statistics; they could not be asked how they liked it.

When a state’s attorney general ruled the state’s hours laws out of existence, and some auto and meat-packing plants made women work as much as 70 hours a week and more, many of these women had to leave their jobs – so their unions reported. It is not recorded that this fact bothered the type of feminist who could wax indignant only over the failure of the same companies to upgrade confidential secretaries into Board members and vice-presidents.

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F. To complicate the picture, this New Left was later frequently accused by women participants of being sexist, anti-feminist, and shot through with Male Supremacy prejudices at least in practice. To what extent these charges are justified, or, perhaps more to the point, to what New Leftish circles these charges most applied – this is a question of which the present authors cannot speak confidently. Although the accusatory women think this is an independent question, such features of certain New Left circles were closely connected with other ways in which these New Leftists abandoned the ideas and traditions of the preceding socialist movement, in the belief that they were improving on the “Old Left,” which frequently included democratic Marxism. We can take note of, but not settle, this problem.

G. Some enterprising Paulites made an attempt to claim credit for this political windfall. Asked about the inclusion of “sex” in Title VII, a former N.W.P. chair, Ernestine B. Powell, told the press: “It was a great achievement,” not a fluke but “a long hard fight and we won.” [3] Madison Avenue types look on this sort of thing as routine publicism, though on other avenues it is called prevarication. An examination of the N.W.P.’s Papers shows there was no intensive activity characteristic of the party when it sought to pull off a legislative coup. The common knowledge and report that the inclusion of “sex” in Title VII was the doing of the Southern racists is confirmed (for anyone who needs confirmation) by a legislative history and analysis written by R.J. Celada of the Library of Congress. [4]

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1. For this material, see Congressional Record, July 2, 1960, p. 15679–15686.

2. Robert W. Smuts, Women and Work in America (N.Y., Schocken, 1971), xii.

3. Equal Rights Is Battle Cry, Columbus (Ohio) Dispatch, February 12, 1967, in N.W.P. Papers, Reel no. 172.

4. Raymond J. Celada, Equal Employment Opportunity: A Legislative History and Analysis of Title VII of the Civil Rights Act of 1984, presented at hearings before the House General Subcommittee on Labor of the Committee on Education and Labor, July 21, 1965, pp. 116–131 (Washington, D.C. 1965).

5. Equal Rights Is Battle Cry, loc. cit. (9: n.3).

6. See the reference to Wolfgang above, Chap. 7, p. 52.

Last updated on 12 September 2020