The great suffragist, Elizabeth Cady Stanton, once stated that “a woman’s place in society marks the level of civilization.” Passage of the Civil Rights Act of 1964 promised to improve the lives of working women, because it proscribed discrimination “because of sex.” As chronicled in Gillian Thomas’ new book, however, the protections and opportunities women enjoy in the 2016 workplace have truly been created by a group of courageous women who used Title VII to fight sexism all the way to the Supreme Court. If the “level of civilization” in contemporary America surpasses that of 1964, this book highlights the main reasons why.
The author is a staff attorney with the Women’s Rights Project of the ACLU. To make the book accessible to lay persons, she does a creditable job in explaining the legal doctrines, litigation concepts, government agencies, court structures, and personalities that are critical to understanding the story. While these digressions at times slow the narrative, they are generally well edited and strategically placed. Lawyers will find the book a good read.
The 10 cases discussed in the book all resulted in major Supreme Court decisions. One is struck by the broad mosaic of blue and white collar women involved: bank clerk, assembly line worker, prison guard, accounting firm partner, package delivery driver, city water department workers, office receptionist, manufacturing employees, salesperson, and railroad worker.
One of the main themes of the book is that, although passage of the 1964 Act was crucial, it only became transformative through incremental change that was wrought by these women, who used the courts to vindicate their rights and establish important legal precedents.
A great strength of the book is the author’s careful treatment of the personal stories of the women who served as the plaintiffs in the ten cases. To add substance and context, the author conducted extensive interviews of the women, their family members, and their lawyers. These interviews explore the details of the discrimination suffered by the women at the hands of their employers and male co-workers, the personal and financial sacrifices they endured through the litigations, and what they felt when they watched their cases argued before the Supreme Court.
Posterity is also an important aspect of these interviews, as the women are asked to explain in their own words what they felt their cases had meant for women in the workplace. The common thread brings to mind the Albert Camus observance that freedom is nothing else but the chance to be better.
In addition to having a firm grasp of the record in each of the 10 cases, the author also embroiders the story with the jurists who decided them. Success in litigation is influenced by the luck of the draw in the judge assigned, and the author expertly analyzes how certain trial judges and intermediate appellate panels shaped the cases on their way to the Supreme Court.
Just as impressive is the author’s expert recounting of the politics and history that have influenced the development of Title VII. During the 1964 Congressional debates, it was pointed out that the law’s prohibitions against race bias “would afford more rights to black women than to white women.” Thus, the sex bias provision was introduced into the legislation by Congressman Howard Smith (Virginia), an ardent segregationist. The author notes with irony that most working women today would be surprised to learn that they had “an unrepentantly racist, male octogenarian to thank for outlawing sex bias on the job.”
Although the “legal and cultural change effected by Title VII has been nothing short of revolutionary,” the author admits that motherhood “remains one of the most impenetrable barriers to women’s equality.” Like the scholars Michael Graetz and Linda Greenhouse, she observes that the door to sex equality has been opened, but not wide enough to include bias on the basis of pregnancy as a form of sex discrimination.
If pregnancy bias is an issue that has bedeviled the courts, it has also caused great disputes between different feminist groups.
As concisely explained by the author, prior to Title VII, states enacted protective laws that singled out women for protection against “exploitive conditions” in “assembly lines” and “other industrial settings.” By the 1960s, however, other activists such as the National Women’s Party “contended that protective laws had the ancillary effect of stigmatizing women as weak, fragile, and otherwise undeserving of the best-paying jobs.” Ambivalent over the effect Title VII might have over existing state law protections, Esther Peterson, who ran the Labor Department’s Women’s Bureau, asked whether women were “better off being singled out for protection, or are they better served by erasing all legal distinctions between women and men?”
As noted by the author, the issue of pregnancy bias also raises an important philosophical question. Title VII’s “minimalist ban” on discrimination “because of sex” does not answer “equality’s riddle … because only women can become pregnant, what does ‘equality’ between men and women even mean?” It is this “biological difference” that poses the “conundrum for employers and judges alike.”
The book also explores pertinent cultural phenomena, such as the origins of the term “sexual harassment,” that did not even exist in 1964 when Title VII was first enacted. While noting that the “behavior we now call sexual harassment [had] been around as long as women have been working outside the home,” the author notes that it did not “enter the popular lexicon and the law” until the mid-1970s, was first mentioned in a national newspaper in August 1975, and was not recognized as a form of sex discrimination by a federal court until 1976.
The author posits that the advances obtained by women in the workplace since 1964 are owed to Title VII and the cases profiled in the book. “[I]n transforming what it means to be a woman who works,” she concludes, Title VII has “also transformed what it means simply to be a woman.”