How "Sex" Got Into Title VII:
The popular interpretation of the addition of "sex" to Title VII
is that it was "the result of a deliberate ploy of foes of the bill
to scuttle it" (Whalen, 1985, 238). Even a political scientist as well
read in the Congressional Record as Orfield accepted the interpretation
that "[b]itter opponents of the job discrimination title ... decided
to load up the bill with objectionable features that might split the coalition
supporting it" (Orfield, 1975, 299). This view, appealing though it
seems, ignores several factors apparent to anyone who has tried to influence
a Congressional vote: 1) The potential beneficiaries of the amendment --
women -- had experienced lobbyists on the Hill and were not uninterested
in the bill. 2) Southerners had conceded defeat and gone home by Wednesday
(Whalen, 1985, 110-111); the vote occurred on a Saturday -- which is not
Members' favorite day to be in Washington. 3) The number of members voting
on the amendment --301 -- was larger than any other counted vote that day
(the others ranged from 178 to 240). 4) Other amendments which might "clutter
up" the bill, including "sex" amendments to other titles,
were voted down.
Before offering an alternative explanation which takes these factors into account it is necessary to place the "sex" amendment into historical context. This will clarify the fact that while the prohibition of employment discrimination on the basis of sex was not a widely debated, thoroughly researched policy proposal, neither was it an "accidental breakthrough" (Orfield, 1975, 299).
The National Woman's Party and the Equal Rights Amendment
The National Woman's Party had been lobbying for the Equal Rights Amendment since it was first introduced into Congress in 1923. The NWP was originally founded by the militant branch of the Suffrage Movement in 1916. Once the Nineteenth Amendment was ratified, the NWP, under the leadership of Alice Paul, reorganized itself to focus attention on the eradication of legal discrimination against women through another Congressional amendment (Lemons, 1973, 49). Concentrated in Washington and funded more by legacies and wealthy benefactors than a large membership, the NWP found this strategy suitable to its particular strengths as well as its feminist ideology. The ERA was strongly opposed by the newly created Women's Bureau in the Department of Labor and virtually every other women's organization, particularly the League of Women Voters, the National Consumer's League, and the Women's Trade Union League. Their opposition was based on the one fact about the ERA on which everyone could agree; that it would abolish protective labor legislation for women.
The National Woman's Party and the Women's Bureau coalition (Harrison, 1982, 1988, 8) fought each other to a standstill throughout the 1920s and 1930s. But by the 1940s, the NWP was gaining the upper hand. House and Senate subcommittees were reporting it favorably, the Republican Party endorsed the ERA in its 1940 platform, and the Democratic Party followed suit in 1944. The Senate voted on the ERA for the first time on July 19, 1946, after three days of debate. Although the tally of 38 to 35 was well below the two-thirds required for a Constitutional amendment (92 Cong. Rec. July 19, 1946, 9405; Pardo, 1972, 127-133), expectations of favorable action in the next Congress were high because "there has been a subtle change in the public attitude toward (the ERA)". During World War II, state protective labor laws were waived by State legislatures and labor boards in order that women could work in the war industries while "WACs, WAVEs, SPARs and women Marines took over strenuous jobs, some of them on front-line assignments" (25 Congressional Digest, December 1946, 290).
The Women's Bureau coalition decided to change tactics from mere opposition
to a "more positive" approach. It had always agreed with the NWP
that women faced discrimination in the job market, particularly in pay,
but had argued that this and the discriminatory laws which truly hurt women
were better dealt with through "specific bills for specific ills"
rather than the broad sweep of a Constitutional amendment. In its new incarnation
as the National Committee to Defeat the UnEqual Rights Amendment (NCDUERA),
it proposed an Equal Pay Act. The idea of equal pay for equal work had been
around since at least 1868 (Women's Bureau, 1966). Two states had passed
equal pay laws; but until 1945 there was no attempt to pass such a law on
the federal level. Even with the backing of the NCDUERA, a federal equal
pay act was not successful, either as an anti-ERA measure or in its own
right, due to fears that it would encourage women to stay in the work force
and take jobs away from returning soldiers (Harrison, 1988, 39).
Their next tactic, by the renamed National Committee on the Status of Women, was to propose a "Status Bill" which declared that the policy of the United States to be that "in law and its administration no distinctions on the basis of sex shall be made except such as are reasonably based on differences in physical structure, biological or social function." Instead of enforcement provisions, it would create a Commission on the Legal Status of Women to study sex discrimination (Harrison, 1988, 26-29).
In January 1950, the ERA was debated on the Senate floor once again. When the Status bill was overwhelmingly rejected by 19 to 65, Sen. Carl Hayden (D. Ariz.) proposed an amendment to the ERA which read "The provisions of this article shall not be construed to impair any rights, benefits, or exemptions now or hereafter conferred by law upon persons of the female sex." ERA proponents were caught by surprise, and many Senators, whose support for the ERA had been on the record but never very strong, took advantage of the opportunity to vote for both the rider and the Amendment. The Hayden rider passed 51 to 31 and the ERA, thus vitiated, passed 63 to 19 (96 Cong. Rec., Jan 25, 1950, 872-3; 1950 Congressional Quarterly Almanac 539). This strategy was repeated when the ERA once again came to the Senate floor in July of 1953. This time the rider passed by 58 to 25 and the ERA by 73 to 11 (99 Cong. Rec. July 16, 1953, 8954-5; 1953 Congressional Quarterly Almanac 386).
The ERA never had a chance in the House. Emanuel Celler (D. NY) had been Chair of the Judiciary Committee since 1949. He was a crusty liberal from Brooklyn who shared organized labor's antipathy to the ERA. No hearings were held on the ERA during his chairmanship until 1971 -- after a successful discharge petition by Martha Griffiths in 1970. Between Celler in the House and Hayden in the Senate, opponents of the ERA successfully bottled it up. The NWP continued to walk the halls of Congress every year and faithfully collect endorsements from members of both houses well above the two-thirds needed for passage. But there was no serious interest in the amendment apart from the NWP and the few other women's organizations who had endorsed it in the preceding decades. Even these could do little more than pass resolutions. The NWP was a small, exclusive organization, whose ageing members refused to relinquish leadership of the struggle to anyone else -- even when it could no longer publish its journal Equal Rights (Rupp and Taylor, 1987, 74-5). Consequently, it could still get the ERA introduced into Congress, but it could not get it out.
In 1961 President Kennedy appointed Esther Peterson as Assistant Secretary
of Labor and Director of the Women's Bureau. Two of the most important items
on her agenda were passage of the Equal Pay Act and derailment of the ERA.
To accomplish the first she organized a concerted lobbying campaign which
drew upon the expertise and contacts Peterson had developed as a lobbyist
for the AFL-CIO. The campaign took two years of solid work, during which
there were three sets of hearings: two in the House and one in the Senate.
Although the final bill was narrower than Peterson and Equal Pay advocates
had wanted, and only covered 61 percent of the female labor force, by the
time it was signed into law by President Kennedy on June 10, 1963, both
Houses had heard ample testimony on the problems faced by women in the labor
force (Harrison, 1988, 89-105).
One of Peterson's first recommendations to the new President was the creation of a national commission on women -- a component of the 1947 Status Bill -- which she argued would end "the present troublesome and futile agitation over the ERA," (East, 1982, 7; Murray, 1987, 348-9), but which she also hoped would provide an alternative program of action to improve women's status (Peterson, 1983, 288; Harrison 1982, 378). To avoid the NWP lobbyists, the President's Commission on the Status of Women was created by Executive Order 10980 on December 14, 1961. Eleanor Roosevelt was named the chair and among the members was only one ERA supporter. This was Marguerite Rawalt, a lawyer with the IRS and a former President of the National Federation of Business and Professional Women (BPW). The final report and recommendations of the Commission, American Women, were issued amid much publicity on October 11, 1963, with recommendations in the areas of education, social security, child care, public and private employment, and protective labor legislation. It quickly became something of a Government Printing Office best seller. Over 83,000 copies were distributed within a year, and a private publisher put out a commercial version with an Epilogue by Margaret Mead.
Fair Employment Practices Proposals
The roots of Title VII can be traced to the Unemployment Relief Act of 1933, which provided "[t]hat in employing citizens for the purpose of this Act no discrimination shall be made on account of race, color, or creed," (48 Stat. 22). Most laws passed in the New Deal affecting employment contained similar provisions, or they were "read into" the Acts by Executive regulations. However, these were little more than statements of good intentions, as there were no enforcement mechanisms. Their ineffectiveness was highlighted by the systematic exclusion of blacks from the new jobs created by the mushrooming defense industries prior to World War II. Even before the United States entered the War, black leaders pressed President Roosevelt to sign an Executive Order with teeth in it that would ban discrimination in these industries. Faced with a threatened March on Washington, Roosevelt did so on June 25, 1941. Executive Order 8802 established the Fair Employment Practices Committee with the modest powers to investigate complaints of discrimination and take "appropriate steps" (6 Fed. Reg. 1941, 3109). Although its authority was extended to all federal contractors in 1943, its enforcement power was limited to negotiation and moral suasion. It expired in June 1946. (Burstein, 1985, 8; Equal Employment Opportunity Commission, n.d., 1-3).
Presidents Truman, Eisenhower and Kennedy each established FEP committees by Executive Order, though under different names and with different foci. The Kennedy Committee on Equal Employment Opportunity differed from its predecessors in that it required affirmative action to eliminate discrimination and had the power to terminate the contracts of noncomplying employers as well as to recommend suits to the Justice Department. Its scope was broadened to include virtually all programs and businesses receiving federal money. Nonetheless the "most effective method of achieving compliance ... was ... cooperation." (Nathan, 1969, 87-9; EEOC, 4-5, referring to E.O.s 10308, 10479, 10925, 11114).
The first FEP bill was introduced in 1942. Over the next twenty years, many more were introduced into every Congress, but only three ever reached the floor; the rest were bottled up in committee. The Senate debated FEP bills in 1946 and 1950 but they were filibustered to death when proponents could not muster the necessary two-thirds vote for cloture. These were also the first two years in which the ERA was debated on the floor of the Senate, which may explain why provisions to prohibit sex discrimination in employment were proposed to the House those same two years. Early in 1946 Rep. Clare E. Hoffman (R. Mich.) introduced H.R. 5216, which included sex, ancestry and union membership as protected classes. It was committed to the Labor Committee where it died. (92 Cong. Rec., Jan. 23 1946, 313). On February 22, 1950, Rep. Dwight L. Rogers (D. Fla.) offered a floor amendment to add "sex" to the FEP bill then being debated "so the women of the country will have equal rights with men". No one spoke against it and it passed by a voice vote. (96 Cong. Rec., Feb. 22, 1950, 2247). Although the amended bill passed the House by 240 to 177 the following day, it was a substitute for a stronger bill introduced by Rep. Adam Clayton Powell Jr. (D. NY) after an all night session. Sponsored by Samuel K. McConnell Jr. (R. Pa.), it would have set up an FEP Commission with the power only to study and recommend, not to compel. Nonetheless, this was still the first time either house of Congress voted to equate race and sex discrimination (EEOC, 7-8).
an equation was standard policy for the NWP. Its conservative members were
not pro-civil rights. Most would have preferred no government regulation
of employment. But the aging organization did not wish to see any group
given rights not also given equally to women, and had no compunctions about
taking advantage of any opportunity that came along to advance its cause.
(Rupp and Taylor, 1987, 153-165) Throughout the fifties it lobbied to have
sex discrimination included in the jurisdiction of the President's Committee
on Government Contracts (Eisenhower's FEPC), but it was turned down on the
grounds that the addition would make enforcement difficult. (Rupp and Taylor,
1987, 176; Pardo, 1979, 161-2). It was more successful in 1956, albeit temporarily,
in persuading the House to include sex discrimination in the jurisdiction
of the proposed Civil Rights Commission. Once again the mechanism was a
floor amendment -- made by Rep. Gordon McDonough (R. Cal.) at the request
of his campaign chair, Mary Sinclair Crawford, a Dean at the University
of Southern California and active NWP member. When his wife expressed opposition,
NWP representative Amelia Walker asked Rep. Howard W. Smith (D. Va). to
introduce it instead. (Letter of July 20, 1956 from NWP Congressional Chairman
Alice Paul to Mary Sinclair Crawford; Reel 102, NWP papers). Smith consented,
but McDonough announced his intentions to the House as soon as debate began
on July 17, 1956. Smith voiced his approval, stating that "if this
iniquitous piece of legislation is to be adopted, we certainly ought to
try to do whatever good with it that we can" (102 Cong. Rec., July
17, 1956, 13124-5).
McDonough was pressured by NAACP lobbyist Clarence Mitchell to change his mind. When he refused, the opposition organized. No sooner did the clerk read the one-word amendment two days later, than Rep. Celler (D. NY) tried to turn the issue into an ERA debate. Although the proposed Commission's sole authority was to investigate, "sex" was not germane, he said, because "distinctions based on sex have never been considered within the purview of (the) prohibition(s of) ... the 14th amendment." Four Democratic Congresswomen agreed that adding "sex" would "destroy the real purpose of this bill and will lead to its defeat." Nonetheless, after eloquent pleas by McDonough, Rep. Katherine St. George (R. NY), chief House sponsor of the ERA, and Rep. Howard W. Smith (D. Va.), the House voted in favor by 115 to 83. (Paul oral history, 1972, 617-8; 102 Cong. Rec. July 19, 1956, 13552-7). The bill was passed by the House but by prior arrangement among the leadership was sent to the Senate too late to become law (68 Time, July 30, 1956, 9). It was reintroduced and passed in the next Congress as part of the 1957 Civil Rights Act --without the sex amendment. The NWP thought the debate over the McDonough amendment was "a great help to our cause" but the request was not renewed.
Although no one really took seriously the NWP's efforts to equate sex and
race discrimination, ERA opponents were of two minds. They acknowledged
that women experienced discrimination in employment and argued that specific
anti-discrimination measures would be preferable to the ERA. In written
testimony to the 1956 Democratic and Republican Platform Committees, Walter
Reuther, President of the CIO, supported the addition of sex (and age) to
the discriminations prohibited by government contractors (NWP papers, Reel
103). But opponents also believed, as the President's Commission on the
Status of Women concluded in 1963, that "discrimination based on sex...involved
problems sufficiently different from discrimination based on other factors
listed to make separate treatment preferable" (Mead and Kaplan, 1965,
The nature of separate treatment was not defined, nor was it to define itself over time. Even before the Commission's report was released the NWP was lobbying to have "sex" added to the latest Civil Rights Act. It was alerted to this possibility on July 9, 1963, when President Kennedy, at the recommendation of Esther Peterson, called together over 300 representatives of women's organizations to "discuss those aspects of the nation's civil rights program in which women and women's organizations can play a special role." (Peterson oral history, 1983, 300.) The NWP was included among those invited, but NWP President Emma Guffy Miller sent Nina Horton Avery in her place. She cornered Kennedy as he left to ask him to meet with the NWP to discuss the ERA, then departed herself. Avery reported that the word "sex" did not appear in the bill so there was no reason to stay. The NWP did not participate in the National Women's Committee on Civil Rights that was organized that evening. (Telegram of July 1, 1963 from John F. Kennedy to Emma Guffy Miller; letter of July 13, 1963 from Nina Horton Avery to Emma Guffy Miller; "Report to Membership" by Nina Horton Avery; Reel 108, NWP papers.)
During the next few months both the Civil Rights bill and the nation experienced several dramatic and emotional shocks. Civil rights supporters marched on Washington on August 28, 1963, where they heard Dr. Martin Luther King, Jr. give his famous "I have a dream" speech. Afterwards President Kennedy met with march leaders to discourage them from trying to strengthen Title VII and other portions of the bill because doing so would kill necessary Republican support. Two weeks later several children were killed when a black church was bombed in Birmingham, Alabama. Liberal Democrats responded by strengthening the Civil Rights bill, which was then in the subcommittee of the House Judiciary Committee. A major change was made in Kennedy's weak employment measure which only covered government contractors and relied on persuasion rather than force of law. The new Title VII created an Equal Employment Opportunity Commission which had the power to investigate and, after a hearing, order violators to "cease and desist." Its scope was broadened to include all employers with over 25 employees. The Republicans, who thought they had a deal worked out with the Justice Department, felt betrayed and it took all of Kennedy's and Judiciary Committee Chair Emanuel Celler's political skills to hammer out a compromise. The EEOC survived, but its "cease and desist" powers did not; it was left with only the power to investigate and conciliate. The bill was sent to the Rules Committee the day before Kennedy was assassinated (Loevy, 1990, 62-75; Whalen, 1985, 27-28, 34-35, 59).
As a result of Kennedy's death, passage of a Civil Rights bill became a priority with Congress and the new Administration. This emphasis was fully backed by public opinion. A December Newsweek poll showed that 62 percent of the people supported civil rights, and a National Opinion Research Center survey showed 83 percent in favor of equal employment opportunity. The momentum thwarted the plans of Representative Smith (D. Va.) to use his power as chair of the House Rules Committee to stop or at least delay the Civil Rights bill. Instead he subjected "this nefarious bill" to ten days of intense scrutiny through hearings in January 1964. It was during these hearings that the idea of adding "sex" to the prohibited discriminations was publicly proposed by Smith and other members of the Rules Committee. Although Alice Paul considered such actions to be "sideshows" to the ERA, the NWP had been soliciting support for it for several weeks, and its National Council had passed a formal resolution on December 16, 1963, asking that the Civil Rights bill be amended. The prospects did not look good. None of the national women's organizations would help and Rep. Catherine May (R. Wa.) could not find one among the 40 Congressional allies she queried who would support a sex amendment. (Newsweek poll and Smith quote in Whalen, 1985, 91-92. NORC Survey 330 cited in Burstein, 1985, 46. Zelman, 1980, 60-61. House of Representatives, Committee on Rules, Hearings on H.R. 7152, 88th Cong. 2d Sess., Jan 9-29, 1964, 125, 366, 558. Loevy, 1990, 96-100. Paul oral history, 1972, 615, 622, 624. The resolution is on Reel 108, NWP papers. Portions are cited by Berger, 1971, 332, Brauer, 1983, 43, and Rupp and Taylor, 1987, 176. Reel 108 also contains a four page, single-spaced, unsigned report on "c.r. bill progress" apparently written in late February 1964. The author was probably Caruthers Berger, who was an attorney in the Labor Department and a member of the National Council of the NWP.)
After numerous requests the NWP finally received assurances from Reps. Howard W. Smith (D. Va.), Katherine St. George (R. NY), and Martha Griffiths (D. Mich.), that they would introduce an amendment on the floor. Although both St. George and Smith argued that as opponents of the bill any amendment they introduced would be suspect, Griffiths felt that Smith's sponsorship would insure at least a hundred Southern votes (Bird, 1968, 7). The three Representatives agreed that Smith would do the honors, and the others would back him up. They decided to concentrate their efforts on Title VII. The NWP also asked St. George and Julia Hansen (D, Wash.) to introduce a "sex" amendment before asking Smith but were turned down. St. George said she opposed the entire bill (though she voted for it in the end) and Hansen would not violate an agreement among the Democratic leadership that there be no amendments. Only Griffiths was enthusiastic about a "sex" amendment. ("c.r. bill progress", p. 2.) Fifteen years later Catherine May told Fern Ingersoll that "Edith Green and I talked with Howard Smith -- as did other women members of the House, Martha Griffiths -- and asked for sex in the Civil Rights Bill. He accepted it." (May [Bedell] oral history, 1979, 144. Green was the only Congresswoman to speak against adding "sex" to Title VII. See also Paul oral history, supra note 42 at 623-25 which credits Smith for limiting attempts to add a "sex" amendment solely to Title VII even though the NWP would have preferred a general amendment to all of the Titles.)
January 9, as the hearings on H.R. 7152 began, Rep. Smith and Rep. Celler
exchanged their views:
Furthermore, if the bill's managers had perceived the "sex" amendment
as a serious threat to Title VII, they had ample opportunity to scuttle
it two days later when the entire Civil Rights bill was up for review before
the final vote. At that time Rep. Robert Griffin (R. Mich.) tried to amend
the amendment to make it applicable only to those who certified that a spouse,
if any, was unemployed "when the alleged unlawful employment practice
occurred." This was defeated 15 to 96 (110 Cong. Rec., February 10,
1964, 2728). Four of the 28 amendments to Title VII that were offered that
day were adopted (EEOC, n.d. Appendix 2 and 3), including one proposed by
Rep. Frances Bolton (D., Ohio) making "sex" subject to the bona
fide occupational qualification exception (110 Cong. Rec, February 10, 1964,
2718-21). A motion for a roll call vote on the "sex" amendment
was defeated, but there was a separate voice vote on "sex" right
before the final roll call on February 10 which affirmed its addition (110
Cong. Rec., February 10, 1964, 2804). That final roll call registered 290
to 130 in favor of the Civil Rights Act. If those who voiced their approval
the "sex" amendment has been mostly opponents of the Act, it would
have been removed at that time.
After the bill went to the Senate, the National Federation of Business and Professional Women, with 150,000 members and chapters in every state, joined the campaign. Marguerite Rawalt "wrote women lawyers and BPW and Zonta members across the country, explaining the bill and Title VII, telling them whom to write, what to say." She also asked black attorney Pauli Murray to draft a supportive memorandum since Murray "could act freely, being outside the government, and could also present an argument as a victim of both race and sex discrimination." As a result, Texas BPW members wrote President Johnson asking his support, Illinois BPW members deluged Senate Minority Leader Everett Dirksen with telegrams, and Murray's memo was reproduced and distributed to the President, Vice President, Attorney General and key Senators (Patterson, 1986 154. Murray, 1987, 356-7. Zelman, 1980, 70. Bird, 1968, 13. Rawalt oral history, 1980, 365, 396).
The Johnson administration did not urge that the "sex" amendment be dropped by the Senate. Indeed after the bill went to the Senate "sex" was added in other places to make the language consistent throughout. President Johnson stated that he supported it "in its present form" and Democratic leaders said they opposed removing "sex." When Senator Dirksen (R. Ill.), whose support was necessary for Senate passage, said he wanted to remove the amendment, Sen. Margaret Chase Smith (R. Me.), at the urging of the NWP, persuaded the Republican Conference to vote against him. He finally gave up, "in order to avoid the wrath of the women." (Zelman, 1980, 70-1. Brauer, 1983, 52-55. Murray, 1987, 357-8. 110 Cong. Rec., March 26, 1964, 6239. Anita Politzer to Margaret Chase Smith, April 2, 1964; Smith to Politzer, April 9; E. G. Miller to Mary Kennedy, April 15, 1964; Alice Paul to Mary Kennedy, undated draft quoting the Baltimore Sun of May 25, 1964; reel 109, NWP papers. Dirksen was an ERA supporter. Indeed, Alice Paul wrote Marjorie Longwell on August 4, 1956 praising his "uncompromising support" while a member of the Senate Judiciary Committee; Reel 103, NWP papers.)
Who Done It?
Both the NWP and Martha Griffiths claimed sole credit for the addition of "sex" to Title VII (though the NWP did give some to the Republican Congresswomen). Both no doubt deserve credit, but even more credit should go to the fortuitous circumstances leading up to that fateful day. The most important of these was the civil rights movement, without which there wouldn't have been a Civil Rights Act. Given the amount of time necessary to pass the relatively innocuous Equal Pay Act, and the compromises involved, it is highly improbable that an Act prohibiting employment discrimination by sex alone would ever have passed Congress, let alone one creating a federal enforcement agency.
Nor was this vote taken in isolation, despite the claim by opponents that the "sex" amendment was hasty and ill-considered. Testimony about employment discrimination dominated the hearings held on the Equal Pay Act in a House Committee in March of 1962 and 1963, and in a Senate Committee in April of 1963. In mid-October, the Report of the President's Commission had been released to great publicity. And President Johnson had made several public statements in January of 1964 about his intentions to bring more women into government. The lobbying efforts of the NWP were weak compared to those of the civil rights forces, but they weren't non-existent. The NWP solicited help from other women's organizations and sent letters to many Members of Congress. A member of BPW from Texas walked into the NWP headquarters to volunteer full time just when its campaign began. She distributed pamphlets prepared by an NWP attorney from statistics collected by the Women's Bureau on such topics as "The Discriminations Against Women Workers are Greater Than Those Against Negro and Non-White Men." (Berger, 1971, 333. Zelman, 1980, 45-47, 61, 138n17. Paul oral history, 1972, 622, 626-7. Copies of letters to Members of Congress, the NWP pamphlets and an untitled report of Hettie Milam Cook on H.R. 7152, are in the NWP papers, Reel 108. Berger wrote the NWP arguments, but could not be public about her participation because she worked for the Labor Department. Alice Paul, 1972, 628, credits her for working every night without being specific about what she did. Berger was more open about her role with Rupp Taylor, in a 1982 interview, Rupp and Taylor, 1987, 177-8, 251n79.)
The other experienced lobbyist was Esther Peterson. While she officially opposed the "sex" amendment and supplied material for the House floor debate, there's no evidence that she mobilized her considerable resources against it in the Senate, even though there was adequate time to do so. Indeed, in April, Petersen drafted President Johnson's answer to a letter from Texas BPW inquiring about his stand on the "sex" provision, which expressed support for "equal opportunity for women" and the "present form" of the bill (quoted in Zelman, 1980, 71, 140n53).
While the initiative for adding "sex" to Title VII clearly lies with the NWP, the more important questions are who voted for it, and why. This would be simpler if there had been a roll call vote. However, there was only a teller vote. Individuals on either side passed through two tellers who counted them but did not record names. Even if all the Congresswomen, except Edith Green, voted for the "sex" amendment, that would account for only ten votes out of 168. The Southerners might have wished to undermine the Civil Rights bill, but many of them had concluded that passage was inevitable and gone home. Only 86 Southern Democrats were present to vote against the Civil Rights Act on Monday, February 10 (Whalen, 1985, 111-112, 122); it's unlikely that more than that were present to vote for "sex" on February 8. Who were the Members who came to the floor to support "sex" on Saturday and came back on Monday to support the entire Civil Rights Act?
The only evidence on who voted for "sex" on February 8 comes from Rep. Martha Griffiths, who was one of the tellers. She told an interviewer many years later that most of the pro- votes came from Southerners and Republicans. (Brauer, 1983, 51, citing his January 11, 1979 interview with Griffiths). The final vote on the entire Civil Rights bill was a roll call; the Civil Rights Act was passed by a coalition of 152 (mostly Northern) Democrats and 138 Republicans (1964 CQ Almanac, 606). It appears that responsibility for the addition of "sex" to Title VII lies in the hands of the Republican Members of the House of Representatives; they are the ones who voted for both the "sex" amendment and the civil rights bill. This does raise another question. Why should the Republicans, not noted for their love of federal regulation, want to do this?
The answer most likely lies in the Equal Rights Amendment, which had traditionally received much more support from Republicans than Democrats. Support for the ERA went into the Republican Party Platform earlier, and stayed in longer, than in that of the Democrats. The Senate votes on the ERA in 1946, 1950, and 1953 showed that many more Republicans than Democrats supported it (II:3 Congressional Quarterly, July-September 1946, 568; 1950 CQ Almanac, 539; 1953 CQ Almanac, 386). Opposition to the ERA since World War II had been largely from labor unions and their supporters, whose elected representatives were to be found primarily among Northern, and liberal, Democrats. Although most everyone except the NWP thought the ERA was a dead issue, this did not deter the NWP from combing the halls of Congress every year seeking support. NWP stalwarts repeatedly asked Members to sign pledge cards, and frequently compiled lists of sponsors. Their systematic lobbying educated many Congresspeople about sex discrimination and built up a network of relationships with those who were sympathetic to the NWP's concerns (Rupp and Taylor, 1987, 191).
Nor should one assume that the Southerners' only motive in voting to add
"sex" to Title VII was their antagonism toward civil rights. To
judge from the sponsors, ERA sympathizers were largely Republicans and Southern
Democrats; i.e., people who had a distaste for government regulation and
were not attuned to the concerns of organized labor. Rep. Smith spoke in
favor of a "sex" amendment in 1956 and had been an ERA sponsor
since 1943; when he retired in 1966, the NWP lamented the loss of "our
Rock of Gibraltar" (1:7 NWP Bulletin, Nov.-Dec. 1966, 3; Reel 154,
NWP papers). 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 (Brauer, 1983, 45; Harrison, 1988, 295n20).
Although the prohibition of sex discrimination in employment became law without the usual lengthy proceedings of major legislation, it was not as thoughtless, or as devious, as has previously been assumed. Instead it was the product of a small but dedicated group of women, in and out of Congress, who knew how to take advantage of the momentum generated by a larger social movement to promote their own goals, and a larger group of Congressmen willing to make an affirmative statement in favor of women's rights. But it was casual. At a time when the division between "men's jobs" and "women's jobs" was still taken for granted, the implications of prohibiting discrimination in employment on the basis of sex had not been fully explored. If they had been, so revolutionary a proposal is unlikely to have passed. Even the President's Commission cautioned that "[e]xperience is needed in determining what constitutes unjustified discrimination in the treatment of women workers" (Mead and Kaplan, 1976, 49; my emphasis). That is why the "sex" provision is more easily understood as a surrogate for the ERA, an issue which had been extensively discussed, if not agreed upon. Indeed, when McDonough introduced his "sex" amendment to the 1956 Civil Rights Act, he specifically linked it to the ERA and the "voluminous evidence of record in hearings ... to show there has been discrimination because of sex" (102 Cong. Rec., July 17, 1956, 13124. In his papers at the University of Southern California, material on this "sex" amendment is in the folder labeled "ERA"). After 40 years of effort, the NWP still had not persuaded two-thirds of Congress to support the ERA, but it had apparently persuaded a majority.