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The History Corner: Was the Addition of Sex to Title VII a Joke? Two Viewpoints

Scott Highhouse
Bowling Green State University

Note: This edition of the History Corner includes two views on how sex ended up as a protected class under Title VII of the Civil Rights Act of 1964. I initially wrote an essay advocating the con side (it was not a joke) and asked Art Gutman if he would provide comments—and possible corrections to my legalese. Art liked my article but was still sympathetic to the pro side (it was a joke). So, I thought it would be best to present both sides. After all, history is all about providing unique interpretations of events.

Art Gutman’s addendum directly follows this article.

I-O Urban Legend

Scott Highhouse
Bowling Green State University

The addition of sex to protected classes under Title VII of the Civil Rights Act of 1964 was a watershed event in women’s rights. It not only provided protection against unfair discrimination in hiring, firing, and promotion, it also set the stage for protection against sexual harassment in the workplace. Title VII was the foundation upon which the “hostile work environment” theory was built into case law. Many students of employment law are aware that sex was added at the last minute to race, religion, color, and national origin as protected classes. In fact, conventional wisdom suggests that sex was added to the bill in order to kill it! This conclusion was reached by legal scholars of the period (e.g., Vaas, 1966) and is repeated in I-O psychology textbooks on employee selection. For example, Guion (1998) noted that sex was added “in a misguided and unsuccessful effort to derail support for the proposed Act” (p. 166). Berry (2003) commented that “in an attempt to defeat the measure, its opponents added language that would prohibit sex discrimination as well as racial discrimination” (p. 131). According to Gold (1980):

The conventional view is that sex was added as a protected class to the employment discrimination title of the Civil Rights Act of 1964 for the purpose of defeating it by making it unacceptable to some of its supporters or by laughing it to death (p. 453).

Was the addition of sex to Title VII really a joke gone terribly wrong for the hapless jokester?

The arguments in favor of the joke hypothesis are fairly strong. The amendment to add sex to Title VII was introduced 2 days before the vote by Representative Howard W. Smith (aka Judge Smith), a Democrat from Virginia who was vocally opposed to civil rights for Blacks. His introduction of the amendment stimulated hours of humorous debate in the House of Representatives, which some referred to as “ladies day in the House.” Adding to the hilarity, Judge Smith read a letter from a constituent who wanted him to introduce another amendment on behalf of women:

I suggest that you might also favor an amendment or a bill to correct the present “imbalance” which exists between males and females in the United States….The census of 1960 shows that we had 88,331,000 males living in this country, and 90,992,000 females, which leaves the country with an “imbalance” of 2,661,000 females….

Just why the Creator would set up such an imbalance of spinsters, shutting off the “right” of every female to have a husband of her own, is, of course, known only to nature. But I am sure you will agree that this is a grave injustice to womankind and something the congress and president Johnson should take immediate steps to correct, especially in this election year….Would you have any suggestions as to what course our Government might pursue to protect our spinster friends in their “right” to a nice husband and family?

One can imagine this scene playing out like an episode of Mad Men, a fictional television series set in the 1960s. Indeed, it seems that Judge Smith was introducing this amendment because it would be seen, in 1964, as completely absurd to provide protection to women against unfair treatment in the workplace. After all, Smith ultimately voted against the Civil Rights Act of 1964.

One problem with this hypothesis, however, is that it ignores Judge Smith’s close relationship with the National Women’s Party (NWP). Smith had a history of speaking in favor of a sex amendment since 1956, had supported an equal rights amendment since 1943, and was considered by the NWP as “our Rock of Gibraltar” (see Freeman, 1991). In fact, prior to his introduction of the amendment, Judge Smith responded on Meet the Press to a question from a female reporter (also a member of the NWP) about whether he planned to put equal rights for women in Title VII: “I might do that,” he said. This episode suggests that the introduction of Smith’s amendment was not a last-minute ambush on the Civil Rights Act but an anticipated behavior by a politician seen as an ally in the fight for women’s rights.

The notion that the addition of sex to the bill was intended to derail it is also belied by the fact that the sex provision was barely mentioned during the 83 days it was debated in the Senate (Gold, 1980). If the amendment was meant to create rioting in the halls of Congress, then the sponsor would have been wildly off in his prediction. It seems unlikely that Smith, a very powerful Rules Committee chairman and leader of the conservative coalition, would have misjudged the landscape so completely.

Smith was also concerned that Title VII as written would hurt White women disproportionately. Smith commented:

The first thing that an employer will look at [unless the Smith amendment is approved] will be the provision with regard to the records he must keep. If he does not employ that colored woman and has to make that record, the employer will say, “Well, now, if I hire the colored woman I will not be in any trouble, but if I do not hire the colored woman and hire the white woman, then the [EEO] Commission is going to be looking down my throat and will want to know why I did not. I may be in a lawsuit. That will happen as surely as we are here this afternoon. You all know it.

This issue would have been especially salient in an era when men’s and women’s jobs were highly segregated by gender stereotypes. Thus, the Smith amendment seemed motivated not only by a desire to end sex discrimination in employment but also to ensure that White women did not get the short end of the stick.

Why, therefore, did Smith vote against the Civil Rights Act of 1964? Smith was a noted racist, but he was aware that the tide of public sentiment was overwhelmingly in favor of having the bill pass. In other words, Smith may have felt that, as long as the bill was going to pass, he was going to ensure that protection for women in the workplace was going to be part of it. His vote against the bill was predictable, given his beliefs about White superiority and pressure from his conservative coalition.

It seems that the conventional wisdom about how sex ended up in Title VII is another example of an I-O urban legend. As Freeman (1991) concluded, “Despite the humor that Smith injected into the ‘Ladies Day’ debate, what evidence there is does not indicate that he had proposed his amendment as a joke” (p. 13). Interesting, however, is how early this legend originated. Title VII: Legislative History by Francis Vaas was written in 1966 and noted that Smith offered the amendment “in a spirit of satire and ironic cajolery.” Although Vaas never says that the amendment was introduced to derail the bill, he certainly implies it when he points out that Edith Green, author of the Equal Pay Act, spoke out against the amendment. Later scholars have noted, however, that Green was the only congresswoman to speak against the amendment (five congresswomen spoke in favor of it) and was concerned that ending discrimination toward Blacks was a more pressing societal issue. Many supporters of the Civil Rights Act, including the Johnson administration, felt that it was necessary to separate legislation aimed at racial discrimination from legislation aimed at sex discrimination.

A negative outcome of the early interpretation (i.e., the joke hypothesis) is that it may have caused the EEOC to take sex discrimination less seriously than racial discrimination. Freeman commented that the EEOC “viewed the sex amendment as a ‘fluke’ that was ‘conceived out of wedlock,’ and tried to ignore its existence” (1991; p. 1). Clearly misinterpretations of history can lead to consequences more serious than being misled by simple textbook urban legends.

References

     Berry, L. M. (2003). Employee selection. Belmont, CA: Wadsworth.
     Freeman, J. (1991). How “sex” got into Title VII: Persistent opportunism as a maker of public policy. Law and Inequality: A Journal of Theory and Practice, 9, 163–184.
     Gold, M. E. (1980). A tale of two amendments: The reasons Congress added sex to Title VII and their implication for the issue of comparable worth. Duquesne Law Review, 19, 453–477.
     Guion, R. M. (1998). Assessment, measurement, and prediction for personnel decisions. Mahwah, NJ: Erlbaum.
     Vaas, F. J. (1966). Title VII: Legistlative history. Boston College Industrial & Commercial Law Review, 431. Retrieved from
http://www.law.stetson.edu/courses/empdis/vaas.htm.

Legendary, But to What End?

Art Gutman
Florida Institute of Technology

I agree with most of what Scott says. Expert historians (including Scott) correctly note that Howard Smith was a racist opposed to Title VII but at the same time a pioneer of women’s rights who was responsible, for example, for incorporating an equal rights amendment into the Republican presidential plank as early as 1944. In addition, there was much hilarity associated with Smith’s amendment on the floor of Congress, and Smith, himself, contributed to it in a big way. That said, I don’t believe the amendment was a joke. Furthermore, whether it was a ploy to sabotage Title VII is debatable. However, although the inclusion of sex as a protected Title VII class was a watershed event, I think that the Smith amendment helped set back, rather than facilitate, how the courts initially viewed racial harassment as compared to sexual harassment.

If the notion that Smith’s amendment was a ploy to sabotage Title VII is part of the I-O urban legend, then there is no greater contributor than the EEOC itself. In marking the 40th anniversary of Title VII, the EEOC wrote the following:

EEOC had expected to receive very few charges of sex discrimination in its early years. It had assumed that the vast majority of charges would allege race discrimination because Title VII had been debated and passed in a racially-tense environment and most of the Congressional and media attention had focused on the problem of race discrimination. It was a surprise to find that fully one third of the charges (33.5 percent) filed in the first year alleged sex discrimination. After all, the prohibition against sex discrimination had been added as a last minute amendment by Congressman Howard Smith of Virginia who opposed the civil rights legislation and thought that Congress would reject a bill that mandated equal rights for women.
Indeed, most supporters of Title VII initially opposed the Smith amendment because they, too, thought that it would doom the legislation. The amendment stayed in because female members of Congress argued that there was a need to protect equal job opportunities for women. Congresswoman Katherine St. George of New York argued that she could think of “nothing more logical than this amendment” and that while women did not need any special privileges “because we outlast you, we outlive you, ...we are entitled to this little crumb of equality.” The need for this “little crumb of equality” was dramatically illustrated by the unexpectedly large number of sex discrimination charges filed in that first year.
(see http://www.eeoc.gov/eeoc/history/35th/1965-71/shaping.html)

Clearly, Congresswoman St. George was a noted powerhouse who, for example, authored a major amendment to the Equal Pay Act as it was debated in 1962. However, more important was the support of Congresswoman Martha Griffiths, who spearheaded Smith’s amendment to its passage and who Smith personally chose to count the “yes” votes. Yet ironically, if there is any truth to the “joke” part of the amendment, nobody is more responsible for it than Griffiths. In 1979, she greeted the then retired Smith with a hug, telling him, “We will always be known for our amendment,” to which Smith reportedly replied, “Well, of course, you know I offered it as a joke.” (Smith, Oral History Interview, 29 October 1979, U.S. Association of Former Members of Congress, Manuscript Room, Library of Congress, Washington, D.C.: 3–4.).

Of course, Smith might well have been joking with Griffiths—we’ll never know. As for the EEOC, it is arguable that they were late to the party in recognizing the importance of sex discrimination, and therefore, its own summary can be viewed as a biased self-defense.

I believe that the best source for the motives behind Smith’s actions is Gold (1980; cited by Scott above). He correctly noted that the Title VII supporters had more than enough votes to kill the Smith amendment and still pass Title VII. He concluded that Smith knew that Title VII was going to pass and wanted sex as a protected class in the event it did. The voices of five strong congresswomen (followed by others) then added strong support for the amendment, and that’s why it passed. In the end, nobody kept score on who voted for or against the amendment itself. However, we know that Smith voted against Title VII and Griffiths voted for it.

Here’s where I part company with Scott. In preparing for Title VII, the legislative history on racial discrimination identified racial harassment as a major problem. Because of the late introduction of sex as a protected Title VII class, there was no legislative guidance with respect to sexual harassment, which, given any study, would have stood out every bit as much as racial harassment. As a result, the EEOC was quick to prosecute racial harassment in Rogers v. EEOC, 1971), where an Hispanic woman charged hostile harassment, and the 5th Circuit ruled that terms, conditions, and privileges of employment is:

An expansive concept which sweeps within its protective ambit the practice of creating a work environment heavily charged with ethnic or racial discrimination....One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers.

Interestingly, in its landmark ruling defining hostile sexual harassment as a Title VII violation in Meritor v. Vinson (1986), the Supreme Court credited the EEOC’s role in the Rogers case and used the 5th Circuit opinion to bolster its definition of hostile sexual harassment.

However, there were several post-Rogers sexual harassment cases that should have benefited from the EEOC’s wisdom. For example, in Barnes v. Train (1974), which is, I think, the first sexual harassment claim to reach a federal court, a trial judge ruled that Barnes “was discriminated against, not because she was a woman, but because she refused to engage in a sexual affair with her supervisor.” Similarly, in Corne v. Bausch & Lomb (1975), a judge ruled that a supervisor’s conduct served no employer policy, was “nothing more than a personal proclivity, peculiarity or mannerism,” and that he was merely “satisfying a personal urge.” Then in Tompkins v. Public Service (1976), a judge ruled that Title VII should not remedy “what amounts to physical attack motivated by sexual desire” that occurred “in a corporate corridor rather than a back alley,” and in Miller v. Bank of America (1976), a judge feared “that flirtations of the smallest order would give rise to liability.”

By today’s standards, these early rulings were ludicrous. Furthermore, even though each one was overturned on appeal at the circuit court level, one has to wonder why, as late as 1976, and even at the district court level, judges failed to see sexual harassment as a workplace violation. Clearly, the EEOC was early to the party on racial harassment. But was it late to the party on sexual harassment, and is this the reason it viewed the Smith Amendment as an attempt to sabotage Title VII? I’ll leave that for the historians to ponder.

Additional References

Barnes v. Train (D.D.C 1974) 13 FEP Cases.
Corne v. Bausch & Lomb (D. Ariz. 1975) 390 F. Supp 161.
Meritor v. Vinson (1986) 477 US 57.
Miller v. Bank of America (N.D. Cal 1976) 418 F. Supp 233.
Rogers v. EEOC (CA 5 1971) 454 F.2d 234.
Tompkins v. Public Service Electric & Gas (D.N.J. 1976) 422 F. Supp 553.