The Legal Revolution
in the Employment Rights
of Women in the U.S.
April 12, 2000 — Class on Women and Work taught by Prof. Jennie Farley, School of Industrial and Labor Relations, Cornell University, Ithaca NY
I date the start of the sexual revolution in this country to December 1961. On that date, President Kennedy established the President’s Commission On The Status Of Women, with Eleanor Roosevelt as chair, to review, and make recommendations for improving, the status of women. In 1963, that commission issued its report called American Women. On November 1 of that year, three weeks before his assassination, President Kennedy signed an executive order establishing the Interdepartmental Committee On The Status Of Women and the Citizens’ Advisory Council On The Status Of Women to facilitate carrying out the recommendations of the President’s commission.
Nineteen sixty-three was also the year when Congress passed the Equal Pay Act, which became effective in 1964 and was implemented by the department of labor. That law requires equal pay for equal or substantially equal work without regard to sex.
In 1964, Congress passed another much broader act, Title VII of the Civil Rights Act of 1964, which took effect on July 2, 1965, and is enforced by the Equal Employment Opportunity Commission (the EEOC). Originally, that law prohibited only discrimination based on race, color, religion, sex, and national origin by employers, labor unions, and employment agencies. Later, age discrimination and discrimination against persons with physical or mental disabilities were added.
Title VII prohibits discrimination not only in pay but in all terms and conditions of employment, including advertising for employees, pre-employment inquiries and testing, job qualifications, hiring and firing, promotions, and medical and pension benefits.
After I graduated from the University Of Miami School Of Law in 1957, at a time when 3% of the nation’s law school graduates were women, I went to work for the federal government in Washington, DC, because at that time the government was hiring women lawyers, while private law firms and corporations generally were not. After working for the Department of Justice and the National Labor Relations Board in October 1965 — three months after it had commenced operations — I joined the EEOC as the first woman attorney in its Office of the General Counsel.
There I was, in 1965, in a brand new job at a brand new agency, to fight employment discrimination, including that based on sex. At that time, few Americans were aware that there was such a thing as sex discrimination. When I mentioned “women’s rights” in my early speeches, I was greeted with laughter. Words like “sex discrimination” and “women’s rights” hadn’t yet entered the nation’s vocabulary.
What was our country like in 1965? Basically, men and women lived in two different spheres. By and large, a woman’s place was in the home. Her role was to marry and raise a family. If she was bright, common wisdom had it that she was to conceal that brightness. She was to be attractive — but not too attractive. She was not to have career ambitions, although she could work for a few years before marriage as a secretary, saleswoman, schoolteacher, telephone operator, social worker, or nurse. Hopefully, she would be a virgin when she married. When she had children, she was to raise them differently so that they, too, would continue in the modes of behavior appropriate to their sex. If she divorced, which would reflect poorly on her, she might receive an award of alimony and child support–although it was unlikely that she would receive the monies for more than a few years. If she failed to marry, she was an “old maid,” relegated to the periphery of life.
Married women could work outside the home only if dire household finances required it. Under no circumstances were they to earn more money than their husbands.
Women were not to be opinionated or assertive. They were expected to show an interest in fashion, books, ballet, cooking, sewing, knitting, and volunteer activities. Political activities were acceptable as long as they were conducted behind the scenes. Of course, not all women were able or wanted to fit into this pattern, and there were always exceptions. But most women did what they were told because society exacted a high price from deviants.
Men, on the other hand, were the decision-makers and activists. They were the ones who became presidents, legislators, generals, police chiefs, school principals, and corporate executives. They were the heads of their households, and wives and children were expected to defer to their wishes. Men were expected to take the initiative in dating, to have sexual experiences before marriage, to propose marriage, to bear the financial burden for the entire family, and to have little or nothing to do with running the household or raising the children. It was assumed that they would be insensitive, uncaring, and inarticulate–and interested in activities such as sports, drinking, gambling, extramarital affairs, and making money.
Most men did what they were told, too.
This picture of our society was true for most of the population. There were, however, other dynamics at play in minority communities. Historically, for example, more African American women than men attended college. But for most Americans, this was the climate in which the commission and I, as a staff member, were supposed to eliminate sex discrimination.
Not only was the country uninterested in sex discrimination, so were most of the commissioners, officials and staff at the EEOC. At that time, there were 100 permanent employees at the commission and most were there to fight discrimination against African Americans. They didn’t want the commission’s limited staff and resources diverted to issues of sex discrimination. After all, the agency had been created in response to the movement for civil rights for African Americans. There had been no similar movement immediately before 1965 for women’s rights. There had, of course, been an earlier women’s movement, which culminated in 1920 when women got the right to vote. After that, for about 40 years, most women forgot about the struggle for women’s rights. Perhaps they thought that the right to vote would bring with it all other rights. But that did not happen.
The country and the EEOC were, however, in for a shock. In the commission’s first fiscal year, about thirty-seven percent of the complaints filed alleged sex discrimination. These complaints raised a host of new issues that were more difficult than those raised by the complaints of race discrimination. Could employers continue to advertise in classified advertising columns headed “help wanted–male” and “help wanted–female”? Did an employer have to hire women for jobs traditionally considered men’s jobs? Could airlines continue to ground or fire stewardesses when they reached the age of thirty-two or thirty-five or married? What about state protective laws that prohibited the employment of women in certain occupations and limited the number of hours they could work and the amount of weight they could lift? Did school boards have to keep teachers on after they became pregnant? (What would students think if they saw pregnant teachers? Wouldn’t they know they’d had sexual intercourse?) Did employers have to provide the same benefits on retirement to men and women even though women as a class outlived men?
Although the EEOC was responsible for drafting decisions, guidelines, and regulations that set forth what Title VII meant, neither I nor anyone else at the commission knew how to resolve these issues.
The issues that were most fiercely fought involved classified advertising, airline stewardesses, and state protective legislation.
The maintenance of sex-segregated classified advertising columns was of great importance to newspapers and employers. Newspapers derived increased revenue from the double columns, and employers wanted to be able to continue to recruit based on sex. The airlines waged a strenuous battle to maintain the policies of grounding or terminating stewardesses when they reached the age of thirty-two or thirty-five or married. Most airline passengers were men, and the airlines promoted the image of the young, unmarried stewardess to attract businessmen. Furthermore, these policies were financially advantageous for the airlines. They cut down on the expenses incurred for salary increases related to seniority and for pension and retirement benefits.
On another controversial issue, the question of whether Title VII superseded state protective legislation, women were divided. Starting in the early 1900s, states had passed laws restricting women’s employment. Such legislation prohibited the employment of women in certain occupations and industries, such as bars and mines, and limited the number of hours women could work and the amount of weight they could lift. In Utah, for example, a woman couldn’t be hired for a job that required lifting more than fifteen pounds. Such laws also required special benefits for women, such as seats, restrooms, and rest and lunch breaks.
These laws were passed for a number of reasons. Some proponents of such legislation had wanted to protect both male and female employees from sweatshop conditions but feared they wouldn’t be able to get laws passed for both sexes; others wanted to limit women’s competition for jobs with men.
In the area of sex discrimination, the EEOC moved very slowly and conservatively, or not at all. I found myself increasingly frustrated by the unwillingness of most of the officials to come to grips with the issues, and to come to grips with them in ways that would expand employment opportunities for women.
I became the staff person who stood for aggressive enforcement of the sex discrimination prohibitions of the act, and this caused me no end of grief. At the end of one day, after a particularly frustrating discussion with the Executive Director, I left the EEOC building with tears streaming down my face. I didn’t know how I had gotten into this position — fighting for women’s rights. No one had elected me to represent women. Yet I found myself engaged in this battle against men who had power where I had none.
Through my work, I developed a network of support outside the EEOC. I came in contact at various government agencies with mid-level staffers like myself who were concerned with improving the rights of women. Together, we formed an informal network of support and information-sharing.
Then, a writer came to the EEOC. She had become famous through writing a book published in 1963 called the Feminine Mystique, which dealt with the frustrations of women who were housewives and mothers and did not work outside the home. Now, she was interviewing EEOC officials and staff for a second book. Her name was Betty Friedan.
When we met, Betty asked me to reveal problems and conflicts at the commission. As a staff member, I did not feel I could publicly speak out about the commission’s derelictions, and I did not tell her what was happening. But when she came a second time, it was on a day when I was feeling particularly frustrated at the commission’s failure to implement the law for women. I invited her into my office and this time I leveled with her. I told her, with tears in my eyes, that the country needed an organization to fight for women like the National Association For The Advancement Of Colored People (the NAACP) fought for African Americans.
Thereafter, at two meetings, in June and October 1966, fifty-four men and women (of whom I was privileged to be one), led by Betty, founded the National Organization for Women to fight for women’s rights. Then, NOW embarked upon an ambitious program of activities to get the EEOC to enforce Title VII for women. It filed lawsuits, petitioned the EEOC for public hearings, picketed the EEOC and the White House, and generally mobilized public opinion.
I became involved in an underground activity. I took to meeting privately at night in a Washington apartment with three other government lawyers devoted to women’s rights. At those meetings, I discussed the inaction of the commission that I had witnessed during that day or week with regard to women’s rights, and then we drafted letters from NOW to the commission demanding that action be taken in those areas. To my amazement, no one at the commission ever questioned how NOW had become privy to the commission’s deliberations.
As a result of pressure by NOW, the EEOC began to take seriously its mandate to eliminate sex discrimination in employment. It conducted hearings and began to issue interpretations and decisions implementing women’s rights.
It prohibited sex-segregated advertising columns and, with narrow exceptions, making sex a qualification for a job. All jobs, including jobs as flight cabin attendants, had to be open to men and women alike. Furthermore, a woman could not be refused employment because of the preferences of her employer, co-workers, clients, and customers, or because she was pregnant or had children.
Laws that restricted women’s employment were superseded by Title VII. Laws that required benefits for women could be harmonized with Title VII by providing the same benefits to men.
Men and women doing substantially equal work were entitled to equality in pay and other benefits, including pension and retirement benefits. They also had the right to be free of sexual harassment on the job.
NOW was the first organization formed to fight for women’s rights in the mid-’60s, but it was followed by many others.
Traditional women’s organizations, which had initially refused to join the struggle, did so later, and new organizations were formed. Unions, most of which were initially hostile to women’s rights, became involved in the struggle. Unions were in fact in the forefront of the pay equity struggle, the fight to secure equal pay for women for work of comparable worth or value to that of men. Various levels of government also became more active: executive orders were issued by presidents, federal and state laws and municipal ordinances were passed, and court decisions issued.
New government agencies were created to fight discrimination, such as the Office Of Federal Contract Compliance Programs (OFCCP) in the Department Of Labor. Under these orders, contractors and subcontractors of the federal government were required to take affirmative action to hire and promote women or risk the loss of millions of dollars in government contracts.
Discrimination based on sex or marital status in the sale and rental of housing and in the granting of credit was prohibited. Title IX of the Education Amendments of 1972 prohibited educational institutions, from preschools through colleges and universities, that received federal funds from discriminating on the basis of sex against students and all employees, including administrative personnel and faculty members. One of the effects of Title IX has been the requirement for equality in expenditures for school athletic programs.
In 1991, for the first time, women were given the right to secure limited monetary damages for harassment and other intentional sex discrimination. About two weeks after taking office, President Clinton signed the Family And Medical Leave Act requiring employers to provide their employees with up to twelve weeks of unpaid, job-protected leave each year in connection with the birth or adoption of a child or the serious illness of a child, spouse, or parent.
Due to all this activity, the American public became aware that there was a new national priority: equal rights for women.
Where are we today? Women are found in large numbers in professional schools and in the professions, and, to a much lesser extent, in executive suites and legislatures. They also work as carpenters, plumbers, electricians, and taxicab and truck drivers. They are admitted to West Point and other military academies, a fact that was inconceivable thirty-five years ago. The increasing number of women entrepreneurs across the nation has been dramatic. Women-owned businesses are now one-third of all businesses in the United States and employ one out of five American workers. There are over six hundred colleges and universities with women’s studies programs. For the first time, women are being included in clinical research studies, and we are learning that women and men react differently to different medications, that there are sex differences in the vulnerability to disease, and that even where diseases strike both sexes, they often follow different courses.
Every area of our lives has been affected. Laws have changed women’s rights with regard to abortion, divorce, alimony, child custody, child support, rape, service on juries and as administrators and executors of estates, criminal sentences, and admission to places of public accommodation, such as clubs, restaurants, and bars. Our spoken language has changed, and work continues on the development of gender-neutral written language in laws, textbooks, religious texts, and publications of all sorts.
Eighteen years after the founding of NOW, a woman ran for Vice President of the United States on the Democratic ticket, and, nine years after that, a woman became Attorney General of The United States.
A little-known law, a relatively small organization, the developments that followed in this country, and similar movements worldwide have completely changed the face of this country and are well on their way to changing the face of the world. Four years ago, fifty thousand men and women attended the U.N. Fourth World Conference On Women in Beijing, China. The increase in the number and proportion of women who work has been recognized as the single most outstanding phenomenon of the twentieth century.
We’ve achieved a lot, but much remains to be done–and new problems face us. Women are still subject not only to sex discrimination, but if they are older or young women, women of color, or have disabilities, they may be the victims of multiple discrimination. Women are still far from being represented equally in political life, in corporate board rooms and executive suites, in top positions in academia and unions, and in certain professions, such as engineering.
Discrimination against women faculty members remains a problem. In 1995, only 26% of tenured faculty nationwide were women. And that was not because women weren’t entering academia; in 1996, 43% of faculty in tenure-rack positions nationwide were women. The problem is especially pronounced at elite universities.
A year ago, the Boston Globe had a long article entitled: “MIT women win a fight against bias; in a rare move, school admits discrimination.” Three women professors at MIT, the nation’s most prestigious institute of science, decided to research the treatment of women at MIT’s school of science, one of five schools at MIT. After their research, they presented a paper to the dean of that school documenting the facts that women faculty members were discriminated against in salaries and raises, research money, office space, and assignment to positions of power on committees. There were no women department heads and there never had been. When the dean’s own quick investigation confirmed their numbers, he made quick remediation. He boosted women’s salaries an average of 20%; eliminated the requirement that women raise part of their salaries from grants; began aggressively recruiting more women faculty; corrected some pensions; and set up a committee to investigate gender inequities further. He said he expected to have a 40% increase in the number of tenured women faculty members this year.
The U.S. Lags behind other democracies in the representation of women in public office. Women represent only 22 percent of state legislators and only 12 percent of the members of congress. Following the 1992 election when women’s representation in congress doubled, the numbers have remained stagnant. The number of female state legislators is growing at a rate of 1.2% Every two years. At that rate, it is going to take another two generations before parity is reached.
In contrast to the U.S., women in Spain, France, Norway, Sweden, Italy, and in some parts of Japan have been successful in getting mandates that representation of either sex should not fall below a certain percentage of seats in parliament. In this country, women still do not receive equal pay for equal or substantially equal work. The Equal Rights Amendment has yet to be ratified. Sexual harassment is rampant. In fact, student-to-student sexual harassment at all levels of education is on the increase. We have a disproportionate number of women in poverty, and women in poverty means children in poverty. There are increasing numbers of women and children among the homeless. We need more safe houses and services for battered women. The battle for reproductive choice goes on. Millions of women do not have health care coverage. And women have to deal with new realities, such as combining a demanding position with marriage and raising a family, and finding affordable, quality household help and child care. Women increasingly find themselves in the sandwich generation — having to be the caretaker both for their children and their parents.
When we look beyond the U.S. to the rest of the world, the status of women is often shocking. In third world countries, culture, religion, and law often deprive women of basic human rights and sometimes relegate them to almost subhuman status. Afghanistan under the Taliban is the most egregious example but there are many other problems in other countries. Violence against women is a worldwide problem. Female genital mutilation continues, as does the tradition of child marriages, the selling of young girls into prostitution, the legalization of polygamy, the testing of young girls to determine if they are virgins, and discrimination based on sex in the granting of divorces.
Nonetheless, the changes we’ve seen in the past thirty-six years since the Equal Pay Act became effective have been breathtaking. In thinking about the progress that’s been achieved, I can’t say it any better than the anonymous African American woman Dr. Martin Luther King was fond of quoting:
We ain’t what we oughta be,
we ain’t what we wanna be,
we ain’t what we gonna be,
but, thank God, we ain’t what we was.
Copyright 2023 by Sonia Pressman Fuentes. Used by permission. All rights reserved.