Our show last week marked the 50^th anniversary of the Civil Rights Act of 1964, the momentous legislation that sought to combat racial segregation and discrimination in the United States. But the Civil Rights Act also tackled another kind of discrimination – sex discrimination – and scholar Jo Freeman told us the surprising story of how it came to be included.

“At that particular point in time, we had reached the point of saying that discrimination on the basis of race was bad, but we had not reached the point of saying that discrimination on the basis of sex was bad.” – Jo Freeman

Do Women Need Protection?

To understand what happened in 1964, we need to go a little further back – to 1923, and a campaign launched by the National Woman’s Party. The NWP and its firebrand leader - Alice Paul - had been a motivating force behind women’s suffrage, achieved with the 19th Amendment. Since the 1920s, they’d been fighting for an Equal Rights Amendment to the US Constitution, and more legal equality for women in all walks of life.

Image: Members of the National Women’s Party’s Equal Rights Crusade in 1923.

In addition to unequal legal protection when it came to marriage and education, women in the early and mid 20th century were subject to so-called “Protective Laws”. These laws restricted when, where, and even how women could work. The “Protective Laws” were an important focus of protest for the National Women’s Party. They realized that simply having the vote wasn’t enough - some level of economic agency and independence would have to accompany it. However, unlike their suffrage campaigns, they had very little success – the Supreme Court repeatedly upheld gender-based protective laws.

Image: Blondie Cartoon showing gendered work ideals in the 1930s.

Officially “Women’s Work”: 1930s-1950s

Despite the activism of the NWP, discrimination against women in employment proliferated. Government bodies sometimes actively endorsed sexual discrimination in hiring and work: Depression-era agencies only gave certain jobs and hours to women, and during World War II, even the Fair Employment Practices Commission - founded to combat discrimination in war industries - did little or nothing for women. So much for Rosie the Riveter.

Image: Depression-era women’s employment poster.

Fast forward to early 1964, when it became clear that the Civil Rights bill would probably pass the House of Representatives. Seeing their first chance in many years to attack workplace discrimination, the National Women’s Party furiously lobbied their allies in Congress. They wanted to include sex alongside race, as one of the classes which the new Equal Employment Opportunities Commission, established by Title VII of the act, would protect - a very different kind of protection this time around.

Ultimately, they reached out to an unlikely partner: a Virginia congressman named Howard Smith who was a staunch segregationist, and adamantly opposed to the Civil Rights Act itself. But Smith was the chair of the House Rules Committee, a powerful position from which to propose an amendment to the bill. And he had, in fact, been a longtime friend and ally of the National Women’s Party and the few female members in Congress, who pressed him to add “sex” to the bill. By this point, says Jo Freeman, Smith had determined it was impossible to actually stop the Civil Rights Act from passing, and so he decided

“to get what he said was ‘a little bit of good out of this iniquitous bill’”

So Smith proposed his amendment - one he took “very seriously,” as he explained to his colleagues. But quickly his opponents made light of the sex amendment. They even tried to call the debate “Ladies Day In The House.” Smith prevailed, however – the amendment passed and “sex” was added as a category to the CRA.

Image: The actual changed bill for Title VII, preserved just after the vote.

Unfortunately, the tone of the debate, the fact that Smith and the Southerners who voted for the amendment also voted against the final bill, and historians’ willingness to overlook the lobbying of the NWP created an enduring myth that the addition of sex to the bill was actually a “poison pill” – an attempt by Smith to sabotage the Civil Rights Act – or simply a joke.

As Jo Freeman says,

“part of what came with that myth was the idea that the EEOC did not have to take the sex provision seriously…indeed the EECO’s first director called it a ‘fluke, which was conceived out of wedlock.’”

Though nearly 1/3 of all the complaints the EEOC fielded were from women, they rarely acted on those complaints. The EEOC’s inaction, however, led to the founding of a new organization, which would ultimately replace the National Women’s Party as the leading lobby group for women’s rights: the National Organization for Women (NOW).

Image: One of the first NOW marches, in its founding year of 1966.

Initially, NOW was literally directed at the EEOC’s slowness to act – their earliest slogan was “Equal rights for women NOW!” NOW activists rallied around the call for the EEOC to better enforce the sex discrimination provisions of the law:

Image: Protest demanding action on sex discrimination complaints.

From these beginnings, NOW would go on to play a key role in the politics of the 1960s and 1970s, and come closer to passing an Equal Rights Amendment than the National Women’s Party ever had.

As for Title VII’s unlikely sex amendment, it ended up as anything but a joke - proving to be a key moment in the evolution of the feminist movement. The initially weakly enforced provision has become a stronger and stronger tool over time to combat discrimination against women in workplaces across the United States.