1 Professor Gold ILR A Legislative and Judicial History of Equality in the Workplace With his masterful defense of a state

maximum hour law for women in Muller v. Oregon,1 Louis D. Brandeis established the framework within which the next halfcentury of federal action towards American working women would take place. Over that period, the legal paradigm shifted from protecting sex as a class on the basis stereotypesembodied in Brandeis Muller briefto protection based on equality. The First World War brought renewed Congressional attention to the situation of working women; the actions of women in the service of national defense pressured government to create an agency to advocate on their behalf: the Womens Bureau of the Department of Labor. While a triumph for the time, low turnover within the Bureau kept the Progressive principles that simultaneously advocated equal pay while attempting to establish unequal work alive until the 1950s. The Second World War, however, and, to a lesser extent, the programs of the New Deal, provided ample ammunition against the usefulness of stereotypes on the job. The postwar reluctance of the Supreme Court to act on sex discrimination though compelled supporters of equality at work to organize a coalition of like minded groups which would seek redress through Congress. The eventual success of this movement was embodied by the Equal Pay Act of 1963 and augmented by the inclusion of sex as a protected class in the Civil Rights Act of 1964. These two laws forced the Court to address equality at work and began the process of tearing down stereotyped barriers to employment opportunity. The law which Brandeis defended in 1908 was typical of contemporary efforts to protect working women. It stated simply that, no female [shall] be employed in any mechanical establishment or factory or laundrymore than ten hours during any one day.2 Similar laws existed

2 in nineteen other states at the time Muller went to bar and Brandeis made clear that the fate of each of the others rested with the Courts decision.3 Both Brandeis and the State of Oregon were constrained, however, by the Courts 1905 decision in Lochner v. New York,4 which ruled a similar maximum hour law covering bakers unconstitutional. The Court reasoned that New York did not have, reasonable ground for interfering with the liberty of person or the right of free contract by determining the hours of labor in the occupation of a baker because the law protected, neither the safety, the morals, nor the welfare of the public.5 The law therefore could not be justified under New Yorks police powers and consequently violated bakers freedom of contract guaranteed under the Fourteenth Amendment.6 In order to convince the Court to uphold the law, Brandeis thus had to establish that Oregon had reasonable ground for restricting the liberty of women laundry workers. To do so, he distinguished between the target of the New York law, bakers, and the target of the Oregon law, women. Brandeis argued that women as a class deserved and, indeed, required, special protection at work to protect their health and safety; moreover, protecting women benefitted the welfare of the general public as well. If this was true, Brandeis argued, then Oregon was justified in limiting womens liberty of contract.7 To prove the special needs of women as a class, Brandeis turned to social science and statistics. While the research Brandeis used was valuable to proving his argument in 1908, it embodied the paternalistic stereotypes which would deny equality of opportunity for the next five decades. Hindsight aside, Brandeis compiled a lengthy brief filled with excerpts of such social work. Long hours, according to the research, took a severe toll on womens health.8 In addition to the increased possibility of general work injuries, overwork was presented as being dangerous to potential future children and female functions.9 In summarizing that argument, Brandeis said, the evil effect of overwork before as well as after marriage upon childbirth is marked and disastrous.10

3 The adverse effects of overwork on childbirth, however, were presented as not only a danger to individual women but to society itself. Brandeis analysis of the research summarized the Progressive Era attitude well, Deterioration of any large portion of the population inevitably lowers the entire community physically, mentally, and morally. When the health of women has been injured by long hours, not only is the working efficiency of the community impaired, but the deterioration is handed down to succeeding generations. Infant mortality rises, while the children of married workingwomen, who survive, are injured by inevitable neglect. The overwork of future mothers thus directly attacks the welfare of the nation.11 While Brandeis also presented arguments showing the economic and social benefits of shorter hours, the portrayal of women as mothers of the nations children was not only his main argument, but the one the Court seized on as well in upholding the Oregon law. Justice Brewer, writing for a unanimous majority, argued that, [since] healthy mothers are essential to vigorous offspring, the physical well being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race; therefore, because the reproductive health of women was an issue of national concernunlike the health of bakersOregon was justified in restricting womens liberty of contract12 The concern for women as mothers in Brandeis brief and the opinion of the court echoed contemporary attitudes on the nature of working women. When women succeed in pressuring Congress to establish an advocate in the federal government through the Womens Bureau, many of the arguments in the Congressional Record sounded familiar. Establishing the Bureau, however, was no easy task. It was the culmination of almost ten years of advocacy and was spurred by emergency

4 preparations during World War I, the key to which was united outside pressure from womens groups, trade unions, and other similar advocacy organizations. In 1910, the Womens Trade Union League and the National Consumer League, with tepid support from the American Federation of Labor, convinced Congress to authorize a special investigation into the conditions of working women.13 The investigation was conducted over the course of two years by Charles Neill of the Department of Commerce and Labor; when the report was released in 1912, it recognized that the average woman worked in horrendous conditions and recommended the creation of a womens representative in the federal government.14 The result of this was a Womens Division in the Bureau of Labor Statistics.15 Unfortunately, the women of the Division suffered slights and discrimination from their male colleagues and by 1915, all had resigned, rendering the Division effectively defunct.16 The entry of the United States into the First World War, however, forced Congress to take a second look at the issue of women in the work force, as millions flooded into the defense industries starved by the draft. Several federal agencies, indeed, formed subcommittees to deal with womens issues. The Council of National Defense, for example, formed a womens committee which was asked to inspect defense plants to see how best women workers could be utilized, though the committees efforts were not as influential as its members hoped they would be.17 At the Ordnance Department, special womens sections were formed to accomplish a similar task to the womens committee of the CND.18 General William Crozier, the Chief of Ordnance, also issued General Orders 13.19 These orders were written by Mary Van Kleeck and though they were enforced more as guidelines, they nevertheless asked defense contractors to provide reasonable working hours, healthy working conditions, the right to organize, and equal pay for equal work.20 While such adhoc work was admirable under the conditions in the immediate aftermath of Congress declaring war, it hardly represented a national voice for women and could not cover the

5 issue with the same thoroughness as a separate federal bureau could. When Congress recognized this fact in July 1918, it created the independent Women in Industry Service with an appropriation of $40,000.21 Felix Frankfurter, then working at the Department of Labor, was given the authority to pick the head of the new agency; he selected Mary Van Kleeck, who brought Mary Anderson with her from the Ordnance Department to serve as assistant director.22 Compared to the Womens Division in the Bureau of Labor Statistics, the WIS was a remarkable success. For example, when the WIS was founded, only 40 percent of civil service exams allowed female applicants.23 Within two weeks, Van Kleeck and Anderson opened the remaining 60 percent to women.24 The WIS also worked on the same project Van Kleeck had sponsored at the Ordnance Department. In addition to promoting equal pay for equal work in contracts, the Service also specifically asked for eighthour days and fortyeight hour weeks, in addition to lunch breaks and protection from hazardous chemicals.25 Most importantly though, WIS agents performed inspections throughout the country and, though they lacked legal authority to enforce standards, were often successful in badgering employers into compliance.26 A good example of WIS work occurred shortly before the end of the war in response to actions of the Manufacturers Association of Niagara Falls. The Governor of New York had vetoed a bill that would have abolished the states maximum hour law for women; in response, the manufacturers of the Niagara Falls regionmostly involved in the chemical industry supplying ordnance manufacturerswrote to the Department of Labor asking for a federal exemption.27 The manufacturers justified their request by promising that the Polish and Italian immigrant women who would be employed were, accustomed to laboring work.28 In response, Van Kleeck and the WIS organized an investigation of womens working conditions in factories in the area. Their findings not only supported upholding the New York maximum hour law, but to create special protections for the health of wage earning women.29 To be

6 fair to the WIS, it did not have any jurisdictional power over conditions of men and some improvements, such as better ventilation, aided workers regardless of sex. Nevertheless, the Niagara Falls case demonstrates the bifurcation of early federal policy towards women. The WIS staunchly defended the maternalistic maximum hour law despite the fact that equally applying improved conditions could vitiate the need for the law in the first place, although it can be argued the WIS hedged its bets since the improvement in conditions was not necessarily permanent. The shift in federal policy, however, was less dramatic than it might have been due to the demographic nature of women workers during World War I. A significant number of women did work during the war and their contributions should not be downplayed. Of the ten million wage earning women in 1918, close to two million worked in defense industries.30 The vast majority of these women though were young and single. Fewer than 7 percent of white married women, for example, worked for wages.31 That more married women did not work was partly a result of the relative brevity of the war; a propaganda campaign to recruit married women for the Remington munitions factories in Bridgeport, Connecticut was, indeed, cancelled before it could go into full effect due to falling government orders leading up to the Armistice.32 Moreover, though women were officially encouraged to work in defense industries, only 5 percent of those who entered the labor force during the war were doing so for the first time.33 While the women working during World War I performed an important task in that they demonstrated they could perform jobs stereotypically designated for men, a shift of women already in the labor force into mens jobs did not result in a major shift in public perception of job stereotypes. The lack of married women entering the labor forceand nonworking women in generaladditionally left in place the stereotype that women worked only as a prelude to marriage.

7 The mobilization campaigns of World War II had a much different effect on the lives of women and public perception, which will be discussed in detail later. Demographic concerns aside though, federal policy was not guaranteed to be permanently changed either. The WIS was a war emergency agency and only received appropriations through the end of the war; enough women continued working after the armistice, however, that Congress continued funding the WIS through 1919 in order to aid the transition to peace.34 When appropriations threatened to expire again in 1920, Representative Philip Campbell of Kansas and Senator William Kenyon of Iowa cosponsored a bill to turn the WIS into a permanent Womens Bureau within the Department of Labor.35 In establishing what the intended effect of the Womens Bureau was to be within government, it is useful to examine the legislative history of the bills involved. Hearings on the KenyonCambell bill and a competing bill sponsored by Rep. John Raker of California, were held before the Joint Committee on Labor on March 4, 1920.36 Rakers bill intended the primary purpose of the Womens Bureau to be studies on whether or not work harmed women intending to marry, which caused a vicious argument. Raker asked Rep. John MacCrate of New York, is it not what this legislation is primarily for: the benefit of a woman after she leaves work as well as while she works?37 Rep. MacCrate responded, Of course not, women are in industries, and are going in greater numbers. A great many women do not want a man but prefer work.38 In response, Raker shouted that, 99 percent of women have the desire to marry.39 To avoid such disagreement, the Committee instead voted to favorably report the more narrowly worded KenyonCampbell bill. That the committee denied Rakers effort, to try and keep a healthy race, however, should not be seen as a repudiation of the maternalistic qualities of the WIS or the framework established by Brandeis.40 Most of the testimony before the committee, indeed, resembled that of Henry Sterling, a union representative, who said, There are women in

8 industry, and a very great number of them work in conditions that are deplorable. They need the mothering that women can bring them, that men cannot.41 Similar sentiments were also expressed as the KenyonCampbell bill, H.R. 13229, was debated in the House and Senate. Also, unlike Rep. MacCrates exchange with Rep. Raker, the only serious opposition came from congressmen concerned about continuing war time spending and one, Rep. Thomas Blanton of Texas who feared socialist domination of the Department of Labor.42 During the first debate on the bill, which occurred on April 5th, Rep. Campbell outlined his conception of the Bureau, he said, Thousands of women employed in the industries of the country during the war are continuing their employment, and as the years come and go in the future more and more women will be employed in the industries of the country. It is hardly compatible with the attitude of the American people towards those engagedthat they should not have some sympathetic way of reaching the authorities and bringing to the attention of the country any special needs they may have.43 This justification, while milder than that of Rep. Raker, still emphasizes the special needs of women as a class. Not all representatives, however, were so obliging. Rep. Joseph Walsh of Massachusetts accused women of strongarming Congress; strongarm methods have been threatened, Walsh said, and used in connection with the demand of the women of this country. They got suffrage through Congress by strongarm methods.44 Walshs objections had little impact on the eventual outcome of the bill though; indeed, Walsh did not even vote on it.45 More substantive debate took place on April 19th. During this debate, Rep. Campbell clarified the powers of the new bureau to Rep. James McLaughlin of Michigan, who asked, would [the] Bureau have authority to make regulationsand enforce them?46 Campbell replied, No; not to enforce them, but to suggest them.47 More serious opposition came from Rep. Schuyler Merritt

9 of Connecticut. Merrit objected to mak[ing] into permanent law a war time expedient; additionally, Merritt argued, with considerable foresight, that as women pressed for and gained greater equality, Campbells Womens Bureau design would seem unsatisfactory.48 Merritt stated that, I think the women who have given this matter most attention believe that when women get all of their rightswe ought not to differentiate as between men and women.49 If that was true, argued Merritt, it would be wrong to separate protection of men and women within the Department of Labor. One can infer from Rep. Merritts line of reasoning a further demonstration of the attitude the Womens Bureau would enshrine in the federal bureaucracy and against which it would later struggle to change. Other representatives, however, were more direct. In another debate later the same day, Rep. William Carss of Minnesota stated that the purpose of the Bureau should be to protect women for the benefit of the race, saying, As much as many of us deplore that women have to give up homemaking and go out in the world to make a living we find that condition existing today and we have to meet itif we are to retain the health of the coming generation and raise a rugged, virile race of people, we have got to provide for those women in industryand see that those women are protected from anything that might tend to injure their potential motherhood.50 Obviously, even though Rep. Rakers more broadly worded bill was defeated in committee, congressmen, even those who had been present at the hearings like Rep. Carss, did not think that they had necessarily precluded the Womens Bureau from working within the framework Rep. Raker envisioned. The last point of note from the House debate is that, despite the relatively limited mobilization of women, the war nevertheless shaped congressional opinion. Rep. Campbell, for

10 instance, stated that, the war taught the women that they could perform useful labor in the industries of the country, and also taught those engaged in industry that the women made good employees in many of the industries of the country.51 Even Rep. Raker acknowledged womens performance during the war, saying, during the war hundreds of thousands of women took the places of men who had joined the Army and did mens work. Their efficiency and competency were proven in every branch of industry.52 While the views expressed on the war tell us less about how the Womens Bureau would function, they are good evidence as to how even relatively smaller wars or disturbances affect policy. Foreshadowing of the future aside though, the debate on April 19th was the last in the House; the bill passed with 256 yeas, 9 nays, and 162 not voting.53 The bill was referred to the Senate the next day and a favorable report was delivered by Sen. Kenyon on May 4th.54 Following the report, the Senate slowed the legislative process, but only slightly. The first and only day of debate took place on June 1st; token opposition to the bill was given by Senator Charles Thomas of Colorado, who was concerned over growing federal bureaucracy, but debate was otherwise perfunctory and no vote was recorded.55 One superficial amendment passed and was agreed to by the House and after barely four months of debate, President Woodrow Wilson signed the Womens Bureau into law on June 5, 1920.56 The lesson the creation of the Womens Bureau left for future policy change was twofold. As mentioned above, incidents beyond the average citizens control, such as wars, can be important catalysts for policy changes. More importantly, however, organized outside political pressure and a united front are strong motivators for congressmen to shift federal policy. In addition to men like Henry Sterling, the union representative who spoke at the original hearing, Sen. Kenyon discussed the myriad of groups which had pressured him to act in a brief speech during Senate debate. Kenyon stated that, representatives were at the hearings who claimed that they spoke for 9,000,000

11 women in this country [and] the national committees of the two great parties were represented. The Womens Voters League, which has a tremendous membership in this country, were represented and they felt that it would give the bureau a status and dignity to make it permanent.57 Lack of such unity in the coming decades would not only hamper the operation of the Womens Bureau, but hindered further congressional change in federal policy as well. The coalition which lobbied for the Womens Bureau, indeed, did not just lack unity during the 1920s, it fractured completely. In the womens movement, national groups were split between the conservative revanchism popularized by President Warren G. Hardings return to normalcy, the comparatively radical demands of Alice Paul and the National Womens Party, and national middle class groups which were hemorrhaging members.58 The Daughters of the American Revolution, for example, had supported the creation of the Womens Bureau; during the 1920s, though, many in the DAR accused the Bureau of harboring Reds and of supporting communism.59 Bureau chief Mary Anderson, indeed, grew to hate the annual DAR convention which took place only a few blocks away from the Department of Labor, calling it, the Damned Annual Row.60 In addition to losing the patronage of the women of the DAR, other women, as predicted by Rep. Merritt, began pushing for absolute equality. In 1923, the NWP succeeded in having the Equal Rights Amendment introduced to Congress, which would spark several decades of strife between the Bureauwhich desired to defend protective legislationand supporters of the ERA.61 The Bureau suffered less from outright hostility though than from the simple decline of its key allies. The National Consumers League and the Womens Trade Union League, both of which were ardent supporters of the Bureau, faced steep declines in membership and, consequently, political clout, throughout the 1920s.62

12 The WTUL also brought additional troubles for the Womens Bureau aside from loss of influence as it failed in its liaisons with the American Federation of Labor. The president of the AFL, Samuel Gompers, called the WTUL leadership, intellectuals on a sociology slumming tour.63 Mary Anderson had been an organizer with the WTUL, so needless to say, the AFL remained skeptical of the Womens Bureau even after Gompers death. The AFL indeed could ignore the Bureau with impunity as its leadership did not need to worry about recrimination from rank and file women; though over 3 million women worked in trades under AFL jurisdiction, less than 200,000 were members of AFL affiliated unions.64 Moreover, while the Bureau encouraged women to join unions, it often did so at the price of internal inconsistency. In one case, the Bureau organized a campaign against the International Molders Union, which forbade women from being apprentices in foundries; the same Bureau members then launched a drive for increased protective legislation which would prevent women from working in places like foundries in the first place.65 The collapse of the coalition which supported the Womens Bureau did not necessarily mean it should fail in its mission, considering it survived the hurdle of actually being established. Unfortunately for the Bureau though, where its efforts suffered from lack of third party support, its failures were compounded by perpetual lack of funds.66 The inability to expand left the Bureau to become a relatively insular organization with strong institutional loyalty as most Bureau members came from the small coterie of women qualified for its work when it was founded in 1920.67 Many of these women, indeed, would retain their positions until they either chose or were forced to retire in the 1950s.68 Such length of tenure kept the legacy of Progressive thought alive well into the age of Eisenhower. Federal policy, however, was not completely limited by the attitude of one bureau. As during World War I, federal policy was forced to change in an emergency response to the economic catastrophe of the Great Depression. The massive expansion of government programs under

13 Franklin D. Roosevelts New Deal brought not only many new opportunities to women, but created a powerful clique of influential women in Washington D.C. as well. Women such as the first female cabinet secretary, Secretary of Labor Frances Perkins, and Molly Dewson, the powerful head of the Democratic Partys Womens Division, along with Eleanor Roosevelt, ensured that federal relief programs were extended to women as well as men.69 The effects of the Depression did not discriminate based on sex. Among the programs which helped bring more women into public life was the Works Progress Administration. In addition to initiatives such as the Federal Art and Federal Theater Projects, which were open to women, the WPA had a designated Womens Division devoted to relief efforts.70 Yet it would be a mistake to classify the WPA efforts as superior to those of the Womens Bureau. The WPA Womens Division was not concerned with employment, but rather relief and focused on stereotypical chores such as sewing and washing.71 Even if the Womens Bureau had desired to compete with the WPA though, it would have been pointless given the WPAs absolutely massive size. The WPA was funded by a $4.88 billion emergency appropriation worth 6.7 percent of 1935 GDP; the Womens Bureau appropriation that year was $152,000.72 A program which represented a more decisive shift in federal policy and, moreover, worked well with the Womens Bureau, was the National Youth Administration. One of the NYAs projects involved the establishment of summer schools for young girls. The NYA schools ran two to four month programs which emphasized English grammar, health education, and economics, though in order to fulfill the NYAs work requirement, the girls were still expected to spend several hours a day performing such tasks as making hospital bandages or binding government pamphlets.73 The classes themselves, however, used free textbooks mainly composed of the Bulletins issued by the Womens Bureau, which encouraged participation in the labor force.74 Unfortunately, the program

14 was abruptly abolished by Congress over accusations that pupils were being made into Communist cadres and taught to sing the Internationale.75 In the end, while the programs of the New Deal created many opportunities for women in governmentopportunities which would not be duplicated until Lyndon B. Johnsons Great Societythe programs themselves represented less a targeted shift in federal policy towards women and more a simple expansion of government that caught many women in its wake.76 The Womens Bureau itself additionally suffered because Mary Anderson became embroiled in a feud with her superior, Frances Perkins, further hurting the ability of the Bureau to perform; while appropriations for the Department of Labor as a whole rose dramatically, from $13.5 million in 1933 to $39.6 million in 1937, appropriations for the Womens Bureau actually fell from $160,000 to $154,000.77 Outside of work programs and intradepartmental hostilities though, the Depression made finding a consistent set of public policies for women workers even more urgent. Neither Anderson, however, nor the rest of the Bureau were ready to sacrifice protective labor legislation and so they continued their fight against the ERA.78 In Bulletin #65, the Bureau argued that comparatively few women suffered economic harm from protective laws because they were naturally averse to the types of jobs that were restricted; moreover, implementation of the ERA would vitiate these laws, exposing unsuspecting women to physical harm for little economic gain.79 Needless to say, Alice Paul described the Bureau as an, enemy campbreathing incompetence.80 The Womens Bureau also failed to reconcile with organized labor during the 1930s as well. During the Depression itself, the AFL continued to remain skeptical of the Womens Bureau and while the new industrial unions of the CIO did not necessarily share the same prejudices as the more conservative AFL, 92 percent of the workers unionized during the Depression were men.81 These numbers on their own would be serious cause for concern, but the strengthening of organized labor prior to the coming of World War II, particularly the industrial unions of the CIO, actually

15 benefitted the push for equality in the postwar era. As we shall see, the new labor movement and Womens Bureau would have a better, if cautious, relationship after World War II and would continue to push Congress to act on policy when it became clear that the Supreme Court would not. The monumental changes wrought by the war and mobilization though must be explained first. When the United States was finally forced into the Second World War, the scale of its mobilization efforts dwarfed anything seen before or since and, intentionally or not, changed the fabric of American society for everyone from GIs to AfricanAmericans to women. When the war began, there were high hopes within the Womens Bureau that it would be allowed to reprise the role that the WIS had played during World War I.82 Unfortunately for Anderson and the members of the Bureau, the Roosevelt administration preferred to operate through a host of newly created federal agencies.83 During the initial phases of the war, indeed, it was difficult for the Bureau to determine where exactly it should be exerting its efforts; the National Defense Advisory Committee, the Office of Production Management, and the War Production Board all laid some claim to restructuring the economy and reorienting labor to meet wartime demands.84 The issue of which agency would be best to liaise with was solved in April 1942 with the creation of the War Manpower Commission.85 Initially, however, the WMC was little interested in dealing with the Bureau, even though it had specifically created a Management Labor Policy Committee.86 To counter this problem, the Bureau put significant pressure on WMC chairman Paul McNutt to include a Bureau perspective and, in a rare wartime victory for the Bureau, McNutt acquiesced, appointing a Womens Advisory Committee in late 1942.87 The victory was bittersweet though as the WAC was rapidly marginalized within the wartime bureaucracy; the only task the WAC was ever given involved recruiting women into factories and the armed services.88 Even then, the WMC preferred operating through different agencies, such as the Office of War Information. 89

16 The OWI was founded in the summer of 1942 and was immediately tasked with reconciling the American public to what the federal government perceived to be the necessities of war.90 The OWI itself worked both through internal subbureaus, such as the Magazine Bureau, and private sector partnerships, such as the War Advertising Council.91 The task handed to these agencies, as it related to women war workers, was immense. In 1936, a Gallup poll had shown that 85 percent of American men and 79 percent of women disapproved of married women working outside the home if a husband was able to support her.92 The federal government had no real interest in changing societal norms, but, at least temporarily, it needed to make sure that even married women would be viewed as competent and capable workers in order to avoid interruptions to production. It was left to the OWI and its partners to determine how best this task could be done. In reaching the public, the Magazine Bureau proved to be a key actor; it was chaired by Dorothy Ducas, a journalist and personal friend of Eleanor Roosevelt.93 Ducas began publication of a bimonthly journal called the Magazine War Guide. The Guide, which contained suggestions for stories and campaigns which would help the war effort, was sent to magazine editors at publications such as McCalls, Ladies Home Journal, Cosmopolitan, Life, and the Saturday Evening Post.94 A typical issue contained statements such as, men in [bluecollar] fields must be prepared to receive women as coworkers. This can be done through stories showing the advent of women in the logging camps, on the railroadsand showing them not as weak sisters but as coming through in manly style.95 By early 1943, such directives were combined into a cohesive womanpower campaign designed to recruit women into war industries and mollify their male coworkers.96 A prime example of this campaign can be seen in the evolution of married female characters in the short fiction stories of the Saturday Evening Post. In 1942, though 54 percent of lead stories contained a prominent female character, only 17 percent of the total number of stories contained women in war work.97 The shift in 1943 was dramatic. That year, 67 percent of lead stories

17 contained prominent female characters, but, more importantly, 57 percent of all stories contained female characters in war work.98 On a smaller level, the same change occurred for married women. In 1942, only 18 percent of lead female characters engaged in war work were portrayed as married; in 1943, that percentage rose to 30 percent.99 The Post also made contributions to art as well as fiction. The Posts premier illustrator was Norman Rockwell, who created enduring, front page images of Rosie the Riveter, two of which appeared in 1943.100 The result of the WMC and OWI campaigns were phenomenal. The Post alone had a wartime circulation of over three million and it was just one publication out of many. The federally directed campaign and wartime necessity allowed hundreds of thousands of women to take jobs stereotypically reserved for men. Throughout the war, the aircraft industry employed 310,000 women, another 200,000 worked in the automobile industry, and there were over 375,000 women doing electrical work.101 Many other women additionally found work in heavy industry and transportation such as on railroads or in shipyards.102 Womens presence in these industries also gave them increased access to the benefits of President Roosevelts new labor laws. Three million women joined unions during the war, three times the number of women unionized in 1940.103 More importantly, many became members of large, industrial unions like the United Auto Workers, which had 350,000 female members.104 The ties between women and industrial unions would become increasingly important as the Womens Bureau sought to reassert itself in the postwar era. It is true that many of these women were members of the working class, similar to most of the women who worked during World War I; they had not been the targets of the propaganda campaigns.105 Unlike World War I though, there were a significant amount of women who were entering the labor force for the first time. In 1940, 22 percent of women over the age of fourteen worked; by 1945, that percentage had risen to 36 percent.106 In raw numbers, this meant six million women traded housework for the factory.107 Moreover, while the women war workers of World War

18 I were young and single, during World War II, married women outnumbered single women in the labor force for the first time in American history; of the six million women entering the labor force during the war, indeed, 1.5 million were between the ages of fortyfive and sixtyfive.108 Federal policy during the war was not intended destroy stereotypes about what jobs women could do; it was designed to show what women must do to win the war. By its very success, however, it provided innumerable examples that the stereotypes themselves were false. Unfortunately, women who desired to stay in their wartime positions after victory faced serious challenges to that goal. While their work may have provided persuasive evidence that old stereotypes were wrong, it did not automatically convince many employers, who rapidly returned to prewar hiring and firing practices.109 Additionally, federal policy, while not directed specifically against women, further undermined their tenuous position; under federal mandate, employers were required to rehire returning veterans to their old positions, further displacing many women.110 The end result was that by 1946, one out of every four women working in factories lost their job.111 While the labor market struggled to adjust to postwar realities, the Womens Bureau found itself once again the sole federal policy outlet for working women. Its actions showed it attempting to straddle the old Progressive Era ideas it was founded on and the clear need for a fundamental shift in federal policy. Members of the Bureau knew from their own surveys that most women75 percent by the Bureaus countdesired to remain in the labor force after the war. While the Bureau was dedicated to meeting these desires, it was not always in the way many women wanted.112 The Bureaus Employment Opportunities Section sought to funnel women into nonindustrial fields which lacked the potential for advancement and benefits of unionization so many wartime jobs provided.113 An article by staff member Kathryn Blood in Glamour, indeed, stated that most women were, nonmechanical Nells who should seek occupations, in which they could use their characteristic abilities.114

19 Despite such attitudes, however, the Womens Bureau had also always supported the principle of equal pay. After the war, the Bureau, now led by Frieda Miller, Mary Andersons friend and handpicked successor, reevaluated whether such a policy was possible on the federal level.115 Miller chose to pursue such legislation on two grounds: first, almost the entire Supreme Court had been appointed by Franklin Roosevelt and had, in 1941, upheld a national minimum wage law, the Fair Labor Standards Act.116 Second, an equal pay act was thought to undermine the position of ERA supporters and the Bureau was still determined to defend protective employment laws.117 Pressure for an equal pay law also came from outside the Bureau as well. During the war, equal pay policies had been established by unions like the UAW and United Electrical Workers to prevent employers using women to lower mens wages; codifying such laws on a federal level would make this guarantee permanent.118 With this strategy in mind, the Womens Bureau began to draft legislation with Senator Wayne Morse of Oregon and Senator Claude Pepper of Florida, which became S. 1178. The Senate Subcommittee on Education and Labor began hearings on the bill on October 29, 1945.119 The index of statements and testimony shows the degree of success which the Bureau had in recruiting allies to its coalition. Six different national unions in addition to a myriad of womens interest groups testified before the committee in support of the bill; moreover, not only did the CIO send a representative of its Womens Auxiliary, the AFL sent Lewis Hines, its legislative representative, to testify in support of the bill as well as protective labor legislation for women.120 In his testimony, Hines said that, The American Federation of Labor has consistently advocated the policy of equal pay for equal workif we permit any group of workersregardless of who or what they areto be paid less for equivalent work than other workers, we have a potential threat to stability and balance which would ultimately and inevitably become as

20 disastrous to employers as to wage earnersthere is no justificationmoral or economicfor a differential in wages between one worker and another who makes an equal contribution to the industry.121 That the Bureau could win the support of the AFL was a signal of significant strength. In 1945, the AFL had seven million members in the United States with another 1.5 million serving overseas.122 It signified that the coalition which had split during the 1920s could be mended and brought to bear on Congress once again. The hearings also show the impetus for much witness support of the bill. While simple economic justiceas Lewis Hines explainedwas a frequent argument, many witnesses felt compelled to mention the work done by women during the war. In his testimony, Secretary of Labor Lewis Schwellenbach gave his support for the bill saying, the women of America have demonstrated their ability to carry an important share of the industrial effort of this Nation in time of warit should not be overlooked that one out of three employees in the national civilian labor force during the war was a woman.123 Frieda Miller was even more forthright when she said that, the war situation simply created a definitely more favorable atmosphere in which to get this principle of equal pay into operation.124 Even the statement from the National Council of Jewish Women mentioned the war as a motivating factor in support of the bill. The statement read in part that, during the war, women proved that they were able to live up to the same standards of performance as the men alongside whom they worked. To pay women a wage lower than men who perform the same job isa clear injustice to the women concerned.125 The Bureau and its allies had cause to be optimistic in the wake of such testimony. Indeed, a companion bill to S. 1178, H.R.5221, was introduced in the House shortly after the Senate hearings by Rep. Chase Gooding Woodhouse of Connecticut.126 Additionally, S. 1178 was reported favorably to the Senate on June 21, 1946.127 H.R. 5221 was also reported favorably on July 27th, though the

21 House Report simply chose to reprint the Senate report.128 The Senate Report first discussed that even given the wide variety of witnesses called, not one testified in opposition to the bill and as such recommended swift enactment.129 The report also outlined three central justifications for the bill: the existence of wagerate discrimination based on sex, the depressing effect of discriminatory wage rate differentials on the economy, and the injustice of wage differentials to women workers.130 On the reality of wage discrimination, the report cited the halfcentury spent trying to abolish it as, the most eloquent testimony to [its] existence, and referenced the actions taken during World War I to mitigate it.131 Furthermore, the report noted that World War II had brought the issue to national attention before the War Labor Board.132 During the war, the Labor Board issued General Order No. 16, which was similar to the Ordnance Departments General Orders 13 from World War I.133 Employers were given limited freedom from wage controls in order to make voluntary adjustments to meet the principle of equal pay for equal work; due to the labor shortage in many industries, many employers took advantage of this option to attract more workers.134 With the war over, the report argued that progress made during the war would be threatened without a permanent legislative shift in federal policy.135 The economic justification for the bill, however, demonstrates the length to which the report was willing to go in order to convince the 79th Congress of its necessity. That February, Congress had passed the Employment Act of 1946; its goal of full employment demanded careful economic planning to keep production growing.136 Wage discrimination threatened those goals. The report read, Wage practices which tend to keep [womens] incomes at low levels will inevitably effect a considerable reduction in the available amount of purchasing power and demand for consumer goods, and will thus tend to defeat our attempts to maintain full employment through high levels of productionfor the protection of the

22 national economy, therefore, your committee believes it necessary that Federal legislation be enacted to prohibit sex discrimination in wage rates.137 By linking the need for a shift in federal policy for women workers with such an important piece of contemporary policy, it is obvious that the Senators and Representatives who drafted the reports had recognized that women were to be part of the permanent labor force and that denying them equal treatment at work would hurt the nation as much as it did the individual women. Speaking of a separate injustice was almost redundant. Yet despite such glowing reports and strong testimony, neither bill was ever debated on the floor. It is moreover difficult to discover why the bills were not debated as such backroom conversations are not documented in the Congressional Record. Partisan politics does not provide a satisfactory answer as both parties had unequivocally endorsed equal pay for equal work in their 1944 platforms and both would do so again in 1948; both parties had also endorsed an equal rights amendment though, so it is possible that intraparty politics played a role.138 The Republican Party also gained control of both houses of Congress in the 1946 midterm elections for the first time since 1930, but after a protracted fight with President Harry Truman, promptly ceded both houses back to the Democrats in 1948.139 It is equally possible that during such turbulent political times, even relatively popular legislation was overlooked. Lastly, such a shift in federal policy is usually best accomplished with strong executive as well as legislative leadership; such leadership was simply not focused on equal pay in 1946.140 The failure to pass equal pay legislation in the immediate aftermath of the war did not necessarily mean that any hope of a permanent federal shift was lost. The Supreme Court had undergone a considerable transformation since 1908 and, indeed, intervened in civil rights cases where Congress could or would not act throughout the postwar era, ultimately culminating in its repudiation of the separate but equal doctrine of Plessey v. Ferguson in the monumental decision

23 Brown v. Board of Education.141 While the members of the Womens Bureau would not have wanted a full repudiation of Muller, the Court did have the opportunity to act on some of the more obvious stereotype based violations of equal protection when it considered Goesaert v. Cleary in November 1948.142 In Goesaert, plaintiff Valentine Goesaert was the duly licensed owner of a bar in Dearborn, Michigan in which she and her daughter Margaret Goesaert worked as bartenders.143 In 1945, the Michigan State Legislature adopted an amendment to its Liquor Control Act which stated that, No person shall act as bartender in establishment licensed under this act to sell alcoholic liquorin any cityhaving a population of 50,000 or more, unless such person shall be licensed by the commissionEach applicant for license shall be a male person 21 years of age or overProvided, that the wife or daughter of the male owner of any establishment licensed to sell alcoholic liquormay be licensed as a bartender by the commission.144 The effect of this new law on the plaintiffs was to deny the right of Valentine Goesaert to work as a bartender in her own establishment and to moreover compel her to discharge her daughter from employment. In a 21 decision, the district court upheld the Michigan law and denied the plaintiffs injunctive relief.145 Plaintiffs filed an appeal with the Supreme Court, which granted certiorari. In the brief for the appellants, counsel argued that the classification made by the Michigan law in regard to sex was, repugnant to the Fourteenth Amendment to the Constitution of the United States in that it creates an unreasonable and arbitrary classification, and denies the plaintiffs of the equal protection of the laws.146 Counsel reasoned that persons similarly situated were not affected alike by the statute; the wife and daughter of a male bar owner could legally work as bartenders even in his absence while the daughter of a female ownerand the female owner

24 herselfcould not, even if a male was always present.147 In support of this position they quoted at length the dissent of Judge Picard from the district court decision, who wrote, Has not this woman by every test of reasoning been deprived of the equal protection of the laws? Ones sense of fair play and justice rebelsLindsley v. National Carbonic Gas Co.148 holds that the constitutionality of any legislative enactment may be attacked when it is without any reasonable basis and therefore is purely arbitrary This law can be upheld then only if it is not arbitrary and unreasonable under any set of facts that can reasonably be conceived.149 In his dissent, cited by counsel, Judge Picard then proposed situations under which the law would seem palpably arbitrary, capricious and unreasonable for each reason the majority opinion of the district court cited for upholding the law.150 In considering this case, the Supreme Court had the opportunity to push, if not Congress, then the state legislatures, towards an interpretation of the equal protection clause which rejected the relevance of stereotypes to the law. Writing for the majority, however, Justice Frankfurter disagreed. Frankfurter recognized that women were capable of working in bars and, indeed, called it a historic calling. We meet the alewife, sprightly and ribald, in Shakespeare.151 While this was true, Frankfurter wrote though, the authority of a legislature to regulate the liquor business was equally as ancient and the Fourteenth Amendment did not change that authority, he argued that, This is so despite the vast changes in the social and legal position of women. The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes.152 Frankfurter further reasoned that the distinction drawn by the Michigan law passed constitutional muster because bartending by women, in allowable legislative judgment, could cause moral and

25 social problems against which the state was justified in using its police powers.153 The legislatures distinction between ownership could be upheld on the same grounds, that is the problem the law was designed to counter could be mitigated by male ownership and therefore women could work at such bars.154 Justice Rutledge, joined by Justices Douglas and Murphythough they did not argue directly that women had outgrown protective legislationably demonstrated in their dissent why such arbitrary distinctions between men and women harmed those they were supposedly meant to protect. The dissent argued that the law allowed women to bartend alone, so long as the bar was owned by a husband or father while simultaneously denying employment to all other women, even if they owned the bar.155 Such an inevitable result, reasoned Rutledge, belies the assumption that the statute was motivated by a legislative solicitude for the moral and physical well-being of women who, but for the law, would be employed as barmaids. Since there could be no other conceivable justification for such discrimination against women owners of liquor establishments, the statute should be held invalid as a denial of equal protection.156 Nevertheless, the majority affirmed the judgment of the district court. The shift in federal policy would not come from the Supreme Court. Goesaert, indeed, would stand until 1976 when the Court overturned it in Craig v. Boren, well after Congress had made the decision to shift federal policy themselves.157 Combined with the failure of Congress to pass an equal pay act, the Goesaert decision forced the coalition of womens groups, unions, and liberal politicians striving for workplace equality to regroup. The Bureau continued its advocacy for equal pay and bills were put before congress again in both 1948 and 1950, though nothing substantive came from either.158 The election of 1952 and the administration of Dwight D. Eisenhower, however, brought significant change to the

26 operation of the Womens Bureau which ultimately helped lead to the final shift in federal policy. Frieda Miller, one of the most significant connections to the original Progressive Era Bureau of Mary Anderson, was replaced by Alice Leopold.159 The survival of the Bureau through the 1950s simultaneously cut its heaviest ties with an internally inconsistent past and preserved it as a base from which to influence the future direction of federal policy. Leopolds first act in office indeed was an attempt to reduce the tensions between the Bureau and ERA supporters. The Bureau had been slowly losing outside supporters for its stance on protective legislation; the Womens Trade Union League, for example, one of the most important supporters of protective legislation and, consequently, vociferous opponents of the ERA, had disbanded in 1950.160 While Leopold never went so far as to completely renounce protective legislation, she reasoned that downplaying it among the Bureaus priorities might attract ERA supporters to help pass equal pay legislation.161 Leopolds record on the task was no better than Millers though, as equal pay bills brought up in 1954, 1955, 1957, and 1959 all came to nothing.162 Congress could not decide whether an equal pay law should be administered through the Womens Bureau and modeled on the National Labor Relations Act, or simply be enacted as an amendment to the Fair Labor Standards Act.163 During the 1950s, the Bureau was additionally more politicized than at any previous point in its history. In 1954, President Eisenhower indeed proposed to eliminate the Bureau completely in a message delivered to Congress on his Reorganization Plan; Eisenhower reasoned that there was no longer any need for an arm of the federal government devoted to womens special interests since women were represented in all 466 occupations listed by the Bureau of the Census.164 It was only through the administrative discretion of Secretary of Labor James Mitchell that the Womens Bureau was saved from abolition; nevertheless, the Bureau lost a significant amount of authority which might have allowed it to administer an equal pay law. It should be noted as well that Leopolds

27 appointment on its own had already politicized the Bureau. Unlike her predecessors, Leopold had been an elected Republican official; she had served in the Connecticut General Assembly, was elected Connecticut secretary of state, and served for a period as acting governor.165 Given the newly political nature of the office, it was no surprise when John F. Kennedy replaced Leopold after his inauguration in 1961. His choice, Esther Peterson, combined with Kennedys own executive leadership, would harness the coalition that had been built since the end of World War II to finally shift federal policy towards promoting a more equal workplace. Peterson herself, indeed, had been part of the coalition. After World War II, she had worked for the Amalgamated Clothing Workers of America and the newly united AFLCIO as a lobbyist.166 She had also known Kennedy since he was a Member of the House.167 When Kennedy offered her a position in his administration at the United Nations, she asked for the Womens Bureau instead because of her, labor union base.168 Peterson was not willing to go as far as Leopold on protective legislation without any guarantees of federal protection and actually increased opposition to the ERA.169 Peterson, however, also provided a new focus on securing equal pay legislation and had the legislative and political insight necessary for success. Petersons activism was given additional leverage by Kennedys active interest in improving the status of working women. On December 14, 1961, Kennedy signed Executive Order 10980, which created the Presidents Commission on the Status of Women to be administered by the Department of Labor.170 Peterson had actively worked to convince Kennedy to issue the order and had written it with the help of, among others, Secretary of Labor Arthur Goldberg, Helen Betholt of the Communication Workers of America, and Olya Margolin of the National Council of Jewish Women.171 The Commission itself contained an equally if not more impressive coalition of groups; representatives came from the Union of Electrical, Radio, and Machine Workers, the National

28 Council of Negro Women, the National Federation of Business and Professional Womens Clubs, the National Council of Catholic Women, and the NCJW.172 In evaluating the promise of such a commission, Justice Frankfurter said that, Commissions are admirable means for taking the nation to school.173 Among the immediate suggestions of the Commission were amendments to existing laws and legal action; the Commission suggested that the FLSA should be amended to fully cover hotels, restaurants, and laundries where large numbers of women worked, test cases based on Fourteenth Amendment guarantees of equal protection against laws which discriminated by sex, and immediate passage of an equal pay act.174 A new equal pay bill, S. 1409, was introduced in the Senate by Senator Patrick McNamara of Michigan, Senator Wayne Morse of Oregon, and Senator Jennings Randolph of West Virginia on April 30, 1963.175 A companion bill, H.R. 6060, was introduced in the House by Rep. Edith Green of Oregon six days later on May 6th.176 The bills were favorably reported on May 13th and May 20th, respectively.177 The following legislative history is instructive to determining why Congress agreed to such a shift in policy and what it hoped to achieve in doing so. The first debate on what would become the Equal Pay Act of 1963 occurred in the Senate on May 17th and was limited in length.178 Not one senator spoke in opposition to the bill and it was passed on the same date as its first debate.179 Senator Jacob Javits of New York, indeed, expressed regret that such a bill had not yet been made into law, calling it, a long overdue reform.180 The statements of the senators nevertheless provide insight into the reasons they were compelled to pass the bill so quickly. Senator McNamara discussed the destruction of the male breadwinner stereotype, saying, that concept is open to serious challenge when one considers that each has human needs that must be metin modernday America, womens role as a provider, for not only herself but her family, has become an essential role.181 The failure of stereotypes also motivated Senator Philip

29 Hart of Michigan, who wrote in a letter of support that, we have long passed the time when women were allegedly working for pin money. Women are working to earn a living.182 Other senators saw the bill as an opportunity to restore a sense of fairness to the workplace. Senator Randolph called the bill as an act of, economic justice, which would further promote American ideals of equality.183 Randolph additionally discussed the coalition built by Esther Peterson and the Womens Bureau; such a change in federal policy was only possible, in cooperation with progressive leaders in organized labor and in management.184 Senator Javits concurred with Randolph as to the necessity of outside influence, congratulating, the many groups who have worked so hard in bringing about this desirable action.185 With Javits statement, substantive debate concluded and the bill was passed without record of a vote.186 In the House, the bill debated at length on May 23rd. A vote on the special rule to consider the bill passed with 362 yeas, 9 nays, and 64 not voting.187 Throughout the debate, most representatives sought to explain either their intent or motivation for supporting the bill. In the former case, Rep. Charles Goodell of New York laid out a comprehensive list of congressional intent. His fifteen item list can be summarized by saying that Congress intended to eliminate only sex based pay discrimination, that is wage differentials based solely on the fact a worker was a man or a woman; wage differentials between men and women based on bona fide classification or seniority systems, for example, would not fall under the jurisdiction of the bill.188 To quote one of Goodells allies Rep. Robert Griffin, the bill was designed to cover jobs which required, equal skill, equal effort, and equal responsibility, and which are performed under similar working conditions.189 Other representatives, however, gave more eloquent, if less legalistic statements of what the bill was intended to do. Rep. Frances Bolton of Ohio stated that, it is a matter of simple justice to pay a woman the same rate as a man when she is performing the same duties.190 Boltons concept of the bill as justice, indeed, would resonate throughout the debate. Rep. Adam Clayton Powell of

30 New York phrased the bill in similar terms, saying, the objective sought is wage justice.191 Still others sought to pass the bill because they thought the frameworkwhich amended the FLSA was superior to a bill endorsed by the Kennedy administration. Rep. Frank Thompson of New Jersey argued that such an act would be easier to implement and follow, since there is a long history of familiarity and a large body of definitions within the structure of the [FLSA]. Rep. Peter Frelinghuysen of New Jersey concurred, saying, investigation and administration will be under the existing Wage and Hour Division, thus avoidinga vast new bureaucracy.192 Moreover, he argued, the definitions and interpretations of the FLSA would apply, both of which were understood by business and labor.193 Among other unique concerns though was one final group of representatives who believed, like Senators McNamara and Hart, that the bill represented a chance to help end stereotypes and promote a more egalitarian society; to them the bill was just as much social policy as it was economic policy. Rep. Edith Green of Oregon clearly stated that the bill was, not debating the question of whether women should work, which, according to Green, had been decided permanently.194 Green stated that, Today we are offering this legislation to correct this inequality, this inferior economic statusas we make progress against the Jim Crow laws of the Nationit is high time that we also work against the Jane Crow lawsThe issue here is really a very simple onethe elimination of one of the most persistent and obnoxious forms of discrimination which is still practiced in this enlightened societyIt is a matter of justice, fairplay, and equity.195 Other representatives agreed. To Rep. Edna Kelly of New York, the bill was corrective legislation to fix, an obvious social injustice.196 Rep. James Roosevelt of California called the bill, a vehicle to implement a federal policyto remove this anachronism of widespread sexbased wage

31 disparities.197 While it is obvious that some congressmen simply wanted to end a narrow section of wage discrimination, it is clear from the statements above that others sought a more fundamental shift in society. Understanding what Congress expected to accomplish, however, is not the same as understanding why Congress acted when it did. Why 1963 and not 1945? It should be noted that even almost two decades after the end of World War II, womens stereotype breaking actions in service still influenced debate. Rep. Roosevelt responded to a claim that women workers had high turnover with data from the war, saying, the employer did just as well with his women employees as he did with men employees at a time when real hard work had to be done.198 Rep. Spark Matsunaga of Hawaii presented a similar argument, stating, It has become abundantly clear, especially from our experience in World War II, that one of our Nations greatest resources is womanpower. If we are to maintain our leadership among the nations of the worldwe must continue to utilize the talents and contributions of our female population.199 Given the obvious influence of the war on the minds of policy makers, even many years after the fact, an argument can be made from the statements of other congressman in the record that the difference was the stronger coalition forged by Esther Peterson, her labor base, and other outside allies. Rep. Green, for example, praised Petersons leadership on equal pay legislation and stated that, without [her,] I think this legislation would not be before us today.200 Rep. Powell had similar words, praising labor representatives, business organizations and spokesmen, as well as party leadership for advancing the bill; Rep. William Ryan of New York noted the influence of the Presidents Commission on the Status of Women.201 Petersons experience as a lobbyist had done its job. Congress was presented with a united front demanding a shift in federal policy on workplace equality it had never had to contend with before.

32 It would be misleading though to present the record as only containing praise for the bill. Further supporting the claim that many members sought wider changes than the legal phrasings of Rep. Goodell, however, is that the most common objection to the bill was not that it infringed on business or that women were happy with motherhood, but rather that the bill did not go far enough. Rep. Bolton, though an otherwise strong supporter, called the bill only, one of the first steps in the right direction.202 Rep. Leonor Sullivan of Missouri stated that the bill, does not go far enoughbut as far as it goes, it is a good bill.203 Rep. Kelly, Rep. Florence Dwyer of New Jersey, and others all expressed similar opinions but were reluctant to sacrifice the good for the perfect.204 Indeed, only three congressmen spoke in full opposition to the bill: Rep. William Colmer of Mississippi, Rep. Paul Findley of Illinois, and Rep. O.C. Fisher of Texas. Colmer framed his opposition around an opinion that the bill was unconstitutional, unfairly favored minority and special interest groups, and was not, any of the federal governments business.205 Rep. Findleys criticisms, however, joined by Rep. Fisher, were much more powerful. Both Findley and Fisher argued that the bill would do more harm than good to women. In debate, Findley said that, although this bill may have motives in the finest tradition of gallantry, it actually is about as ungallant as a kick in the shins.206 Findleys justification for that statement was that employers, believing the cost to employ women to be greater than the cost to employ men, would simply discriminate against women in hiring instead of wages.207 Findley did claim to believe in the cause of equal pay, but perhaps betrayed his intentions when he argued that the greater cost of employing women was mostly a result of, the indisputable fact that women are more prone to homemaking and motherhood than men.208 Findleys statements, while showing that stereotypes were not completely gone, did raise the issue that wages mean nothing without employment and that an equal pay law only protected the former from sex discrimination.

33 With the expiration of debate on the bill it was passed in the House without record of a vote and sent back to the Senate to be reconciled which, after perfunctory debate, was done on May 28th.209 The final bill was sent to the White House the next day and President Kennedy signed the Equal Pay Act into law on June 10, 1963.210 With his signature, Kennedy began one of the largest paradigm shifts in federal policy towards protecting sex as a class at work in American history, though he would tragically not live to see it completed. Congress, indeed, would pass the compliment to the Equal Pay Actthe inclusion of sex as a protected class in Title VII of the Civil Rights Act of 1964within eight months of the Equal Pay Act. While the legislative history of Title VII as a whole is quite large, the debate in the Congressional Record on the amendment that added sex is relatively short. Its importance to the final shift in federal policy and as catalyst for judicial action bears brief consideration. The amendment to add sex as a protected class in the civil rights bill was proposed on February 8, 1964 by Rep. Howard W. Smith of Virginia.211 Smith, the powerful chairman of the Rules Committee, thought he could scuttle the entire bill by forcing the adoption of his amendment and he led a coterie of fellow Southerners in an attempt to do just that. Of the twentytwo congressmen who spoke in favor of the amendment in the record, eleven were Southerners.212 Their commitment to a federal policy shift on workplace equality was highly suspect, considering most arguments resembled that of Rep. Mendel Rivers of South Carolina, who stated, it is incredible to me that the authors of this monstrositywhomever they arewould deprive the white woman of mostly AngloSaxon or Christian heritage equal opportunity before the employer.213 The duplicitous nature of Smiths actions is further demonstrated by the fact that all but one Southerner who spoke strongly for Smiths amendment voted against the civil rights bill as a whole.214 Rep. Smith, however, underestimated the rest of Congress, which still had the Equal Pay Act fresh in its mind. Rep. Emanuel Celler of New York dropped his dismissive tone when Rep. Bolton

34 and Rep. Martha Griffiths of Michigan voiced their support for Smiths amendment.215 Rep. Griffiths stated that since the bill already contained race, she hoped including sex would protect both women and AfricanAmericans, at the hiring gate.216 Griffiths also, again showing the long lasting influence of the war, argued that women should not be denied employment opportunities on the basis of stereotypes they had already demonstrated to be false; she gave the analogy of a 100 pound woman applying to drive a haulaway truck on the basis that she had previously been a streetcar motorman and a school bus driver during the war.217 The final vote on the amendment was 168 yeas to 133 nays and though several congressmen specifically spoke out against including sex as a protected class, each one who did voted for the civil rights bill as a whole, denying Smith his attempted legislative coup and confirming the sincerity of Congress in adopting his amendment.218 Between the addition of sex as a protected class to Title VII and the passage of the Equal Pay Act, Congress, along with presidents Kennedy and Johnson, led an almost complete shift in federal policy away from the stereotypebased Progressive Era decisions like Muller and the early actions of the Womens Bureau towards greater equality of opportunity at work. Such a shift, however, would have been meaningless if it were not properly applied by the Court. Caught between the plain wording of the statutes and clearly articulated legislative history though, the Court made the same shift, if at a more measured pace. Two cases in particular give instructive insight into the movement of the Courts opinion away from accepting the legitimacy of stereotyped employment classifications: Dothard v. Rawlinson219 and United Auto Workers v. Johnson Controls.220 In Dothard, the Court was clearly in the midst of making its transition. Appellee Dianne Rawlinson had sought employment as a prison guard with the Alabama Board of Corrections.221 Alabama required guards to have a minimum height of five feet two inches and a minimum weight of 120pounds.222 Rawlinson was rejected from employment on the basis of not meeting the latter requirement and brought suit on the claim that such qualifications violated the equal protection

35 guarantee of the Fourteenth Amendment; when Alabama adopted a rule segregating prison guard jobs by sexusing the bona fide occupational requirement as a justificationRawlinson amended her suit to claim a violation of Title VII protections as well.223 A district court ruled in favor of Rawlinson and the Supreme Court, noting probable jurisdiction of the appeal, granted certiorari.224 Justice Stewart, writing for the majority, affirmed the judgment of the district court in ruling Alabamas height and weight requirements to be unlawful sex discrimination. Citing Griggs v. Duke Power Co., Stewart argued that to establish a prima facie case of discrimination, Rawlinson only needed to show that, the facially neutral standards in question select applicants for hire in a significantly discriminatory pattern, which Stewart reasoned had been done through statistics showing the national average of women who would be excluded from employment versus men.225 Stewart further argued that though appellants claimed such standards were job related, they not only failed to show any correlation between height, weight, and the strength necessary to perform the job of prison guard, but had, moreover, failed to offer evidence of any kind in specific justification of the statutory standards.226 Such an opinion represented a significant shift away from the type of reasoning offered in Goesaert; Stewarts analysis of the BFOQ as it specifically related to the case at bar, however, retained some of the Courts previous paternalistic qualities. Stewart did affirm the extremely narrow exception provided by the BFOQ.227 He argued though that the environment of the Alabama prison system was, a peculiarly inhospitable one for human beings of whatever sex, noting that a district court had ruled the conditions so appalling that they violated the Constitution.228 Stewart argued that a female guards constant exposure to violent sex offenders would put her and the order of the prison at risk, saying, A woman's relative ability to maintain order in apenitentiary of the type Alabama now runs could be directly reduced by her womanhood. There is a basis in fact for

36 expecting that sex offenders who have criminally assaulted women in the past would be moved to do so again if access to women were established within the prison. With such reasoning, the majority reversed the decision of the district court in ruling that Alabamas exclusion of women violated Title VII protections. Yet though the court did up hold an example of paternalistic sex discrimination, it is undeniable that the Court had been affected by the change in federal policy. In a partial dissent, indeed, Justice Marshall, joined by Justice Brennan, forcefully argued that the majorities reasoning, based as it was on the unconstitutional conditions of the Alabama prison system, was highly flawed.229 They noted that the wording of Title VII requires a BFOQ to be, reasonably necessary to the normal operation of that particular business or enterprise.230 No government agency, they argued, should normally operate in violation of the Constitution and no Court should accept such conditions as justification for discrimination.231 While Dothard is represents an imperfect example of the judicial shift in accompanying the new federal policy, the more recent United Auto Workers case provides a complete illustration. The case, indeed, can be seen as a final abjuration the paternalistic Muller doctrine. In the case, respondent Johnson Controls, Inc. manufactured batteries in which the element lead was a primary component.232 Prior to the protections established by Title VII, Johnson Controls simply did not employ women in the manufacturing of batteries; when women were finally let on the line, the company established a fetal protection policy, which originally simply advised women of the pregnancy related risks of lead exposure, but was shifted in 1982 to a policy of broad exclusion of, all women except those whose inability to bear children is medically documented.233 Appellantsamong whom were a woman who chose to be sterilized in order to avoid losing her job and a man intending to become a father who was denied a leave of absence to reduce his lead levelfiled suit in a federal district court, which grated summary judgment to Johnson Controls, Inc. on the basis of business necessity.234 The circuit court sitting en banc affirmed the

37 district court decision 73, upholding the business necessity defense and quoting Dothard, saying, more is at stake than simply an individual womans decision to weigh and accept the risks of employment.235 The Supreme Court then granted certiorari in order to resolve differing circuit court interpretations of fetal protection policies.236 The opinion of the Court was delivered by Justice Blackmun and disagreed with the evaluations of the district and circuit court. All other justices either joined or filed concurring opinions. The bias of Johnson Controls policy, stated Blackmun, was obvious;237 fertile men were given the opportunity to risk their reproductive health for a particular job but all fertile women were automatically excluded.238 The policy therefore created classifications based on sex, Blackmun argued, because Johnson Controls only cared about protecting the unborn children of its female employees.239 The policy then, Blackmun further reasoned, was illegal sex discrimination unless Johnson Controls could demonstrate the policy fell under a BFOQ exception.240 On the subject of the BFOQ, Blackmun noted its narrow wording and reading, citing Justice Stewarts opinion in Dothard.241 Respondent Johnson Controls, Inc. argued that the fetal protection policy fell in the safety exception within the BFOQ.242 Here again, Blackmun noted Dothard saying that, danger to a woman herself does not justify discrimination.243 Unlike in Dothard, however, Blackmun then rejected respondents argument of a BFOQ exception, arguing, The unconceived fetuses of Johnson Controls' female employeesare neither customers nor third parties whose safety is essential to the business of battery manufacturing. No one can disregard the possibility of injury to future children; the BFOQ, however, is not so broad that it transforms this deep social concern into an essential aspect of battery making. Our case law, therefore, makes clear that the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform the job.244

38 With this argument, the Court reversed the decision of the circuit court and remanded the case for consideration consistent with the decision.245 Compared to the Courts decision in Muller eightythree years prior, the decision in United Auto Workers is rather remarkable. The case represented a final paradigm shift in legal thinking which has destroyed the paternalistic concerns that women exist solely as mothers of future children and which justified the use of stereotyped job classifications that denied equality of opportunity for generations. Such a shift, however, was only possible in conjunction with a broader change in federal policy, demonstrated by the relationship of the Court to the passage of the Equal Pay Act and Title VII. It is also evident that this paradigm shift has permanently affected Congressional consideration of such issues as well; even an issue as seemingly simple as equal pay has been clarified as recently as 2009, with passage of the Lilly Ledbetter Fair Pay Act. It is impossible then to choose one point in time where such a shift became inevitable. What is clear, however, is that the response of Congress and the rest of the federal government to the international and domestic crises of the first half of the 20th century and the dedicated coalition work of women, labor unions, interest groups, bureaucrats, and politicians which followed, have ultimately achieved a goal almost a full century in the making.

39

208 U.S. 412 (1908) Muller v. Oregon, 208 U.S. 412, Brief for Defendant in Error, 1. 3 Ibid, 1-8. 4 198 U.S. 45 (1905) 5 Lochner at 57. 6 Lochner at 57. 7 Muller v. Oregon, 208 U.S. 412, Brief for Defendant in Error, 1-8. 8 Ibid, 18. 9 Ibid, 36. 10 Ibid. 11 Ibid, 47. 12 Muller at 421. 13 Judith Sealander, As Minority Becomes Majority: Federal Reaction to the Phenomenon of Women in the Work Force, 1920-1963, (Westport: Greenwood Press, 1983), 16. 14 Ibid. 15 Ibid. 16 Ibid. 17 Ibid, 17. 18 Ibid, 18. 19 Carrie Brown, Rosies Mom: Forgotten Women Workers of the First World War, (Boston: Northeastern University Press, 2002), 112. 20 Ibid. 21 Ibid, 114. 22 Ibid, 112-113. 23 Ibid, 117. 24 Ibid. 25 Ibid, 118. 26 Ibid, 119. 27 Ibid, 118-19. 28 Ibid, 120. 29 Ibid, 120-24. 30 Ibid, 150. 31 Ibid, 187. 32 Ibid, 155-56. 33 Sealander, As Minority Becomes Majority, 17. 34 Ibid, 18. 35 Ibid. 36 Ibid, 25. 37 Ibid, 18. 38 Ibid. 39 Ibid. 40 Ibid. 41 Ibid, 19. 42 59 Cong. Rec. 5873-5876. 43 59 Cong. Rec. 5217. 44 59 Cong. Rec. 5217. 45 59 Cong. Rec. 5879. 46 59 Cong. Rec. 5864. 47 59 Cong. Rec. 5864. 48 59 Cong. Rec. 5864. 49 59 Cong. Rec. 5864. 50 59 Cong. Rec. 5877. 51 59 Cong. Rec. 5873. 52 59 Cong. Rec. 5877. 53 59 Cong. Rec. 5879. 54 59 Cong. Rec. 5882; 59 Cong. Rec. 6494.
1 2

40

59 Cong. Rec. 8087. 59 Cong. Rec. 8662. 57 59 Cong. Rec. 8086. 58 Sealander, As Minority Becomes Majority, 22-33. 59 Ibid, 22; ibid, 30. 60 Ibid. 61 Ibid, 75. 62 Ibid, 22. 63 Ibid, 33. 64 Ibid, 34. 65 Ibid, 36. 66 Ibid, 37. 67 Ibid, 40-47. 68 Ibid. 69 Ibid, 42. 70 Ibid, 63. 71 Ibid. 72 Jason Scott Smith, Building New Deal Liberalism: The Political Economy of Public Works 19331956, (New York: Cambridge University Press, 2006), 2; Sealander, As Minority Becomes Majority, 52. 73 Ibid, 70. 74 Ibid, 72. 75 Ibid, 73. 76 Ibid, 83. 77 Ibid, 52. 78 Ibid, 77. 79 Ibid, 78. 80 Ibid. 81 Ibid, 73. 82 Ibid, 97-98. 83 Ibid. 84 Ibid, 98. 85 Ibid, 98. 86 Ibid. 87 Ibid, 105. 88 Ibid, 106. 89 Ibid. 90 Maureen Honey, Creating Rosie the Riveter: Class, Gender, and Propaganda during World War II, (Amherst: University of Massachusetts Press, 1994), 30. 91 Ibid, 31-36. 92 Sealander, As Minority Becomes Majority, 59. 93 Honey, Creating Rosie the Riveter, 36. 94 Ibid, 37-38. 95 Ibid, 48. 96 Ibid, 47. 97 Ibid, 64. 98 Ibid. 99 Ibid, 79. 100 Ibid, 63. 101 Kathleen A. Laughlin, Womens Work and Public Policy: A History of the Womens Bureau, U.S. Department of Labor 1945-1970, (Boston: Northeastern University Press, 2000), 15. 102 Sealander, As Minority Becomes Majority, 101; ibid, 106-07. 103 Laughlin, Womens Work and Public Policy, 15. 104 Sealander, As Minority Becomes Majority, 103. 105 Honey, Creating Rosie the Riveter, 208. 106 Laughlin, Womens Work and Public Policy, 15. 107 Ibid.
55 56

41

Ibid; Brown, Rosies Mom, 195. Laughlin, Womens Work and Public Policy, 19. 110 Ibid, 20. 111 Ibid, 19. 112 Sealander, As Minority Becomes Majority, 105. 113 Laughlin, Womens Work and Public Policy, 21. 114 Ibid. 115 Ibid, 24. 116 Ibid. 117 Ibid, 5. 118 Ibid, 25. 119 S. 1178 A Bill Providing Equal Pay For Equal Work For Women And For Other Purposes, 79 th Cong. 1 (1945). 120 Ibid, 121-23 (Testimony of Lewis G. Hines). 121 Ibid. 122 Ibid. 123 Ibid, 5 (Testimony of Lewis B. Schwellenbach). 124 Ibid, 11 (Testimony of Frieda Miller). 125 Ibid, 110 (Statement of the National Council of Jewish Women). 126 Laughlin, Womens Work and Public Policy, 24. 127 S. Rep. No. 1576, 79th Cong., 2nd Sess. 1 (1946). 128 H. Rep. No. 2687, 79th Cong., 2nd Sess. 1 (1946). 129 S. Rep. No. 1576, 79th Cong., 2nd Sess. 1 (1946). 130 Ibid, 2; ibid, 3; ibid, 5. 131 Ibid, 2-3. 132 Ibid, 3. 133 Ibid. 134 Ibid. 135 Ibid. 136 Laughlin, Womens Work and Public Policy, 21-22. 137 S. Rep. No. 1576, 79th Cong., 2nd Sess. 5 (1946). 138 Democratic Party Platform of 1944, The American Presidency Project, accessed November 30, 2012, http://www.presidency.ucsb.edu/ws/index.php?pid=29598; Democratic Party Platform of 1948, The American Presidency Project, accessed November 30, 2012, http://www.presidency.ucsb.edu/ws/index.php?pid=29599; Republican Party Platform of 1944, The American Presidency Project, accessed November 30, 2012, http://www.presidency.ucsb.edu/ws/index.php?pid=25835; Republican Party Platform of 1948, The American Presidency Project, accessed November 30, 2012, http://www.presidency.ucsb.edu/ws/index.php?pid=25836. 139 David McCullough, Truman, (New York: Simon & Schuster, 1992), 467-524. 140 Laughlin, Womens Work and Public Policy, 24. 141 163 U.S. 537 (1896); 347 U.S. 483 (1954) 142 335 U.S. 464 (1948) 143 Goesaert v. Cleary, 334 U.S. 464, Transcript of the Record, 2. 144 Ibid, 2-3. 145 74 F.Supp. 735 (1947) 146 Goesaert v. Cleary, 334 U.S. 464, Brief of the Appellants, 10. 147 Ibid, 18. 148 220 U.S. 61 (1911) 149 Goesaert v. Cleary, 334 U.S. 464, Brief of the Appellants, 26-27. 150 Ibid, 26-29. 151 Goesaert at 465 152 Goesaert at 465 153 Goesaert at 466 154 Goesaert at 466 155 Goesaert at 467 156 Goesaert at 467 157 429 U.S. 190 (1976) 158 Laughlin, Womens Work and Public Policy, 24.
108 109

42

Ibid, 41; ibid, 50. Ibid, 26. 161 Ibid, 49. 162 Ibid, 55-57. 163 Ibid. 164 Ibid. 165 Ibid, 44-45. 166 Ibid, 70. 167 Ibid. 168 Ibid, 73. 169 Ibid, 76. 170 Ibid, 70-80. 171 Ibid, 79. 172 Ibid, 81. 173 Sealander, As Minority Becomes Majority, 144. 174 Ibid, 147. 175 109 Cong. Rec. 7293 176 109 Cong. Rec. 7848 177 109 Cong. Rec. 8264; 109 Cong. Rec. 8976 178 109 Cong. Rec. 8913-8916 179 109 Cong. Rec. 8913-8916 180 109 Cong. Rec. 8916 181 109 Cong. Rec. 8914 182 109 Cong. Rec. 8916 183 109 Cong. Rec. 8914 184 109 Cong. Rec. 8915 185 109 Cong. Rec. 8916 186 109 Cong. Rec. 8916 187 109 Cong. Rec. 9194 188 109 Cong. Rec. 9209 189 109 Cong. Rec. 9197 190 109 Cong. Rec. 9193 191 109 Cong. Rec. 9195 192 109 Cong. Rec. 9195 193 109 Cong. Rec. 9195 194 109 Cong. Rec. 9199 195 109 Cong. Rec. 9199-9200 196 109 Cong. Rec. 9200-9201 197 109 Cong. Rec. 9203 198 109 Cong. Rec. 9206 199 109 Cong. Rec. 9213 200 109 Cong. Rec. 9199 201 109 Cong. Rec. 9195; 109 Cong. Rec. 9211 202 109 Cong. Rec. 9193 203 109 Cong. Rec. 9205 204 109 Cong. Rec. 9193-9217 205 109 Cong. Rec. 9193 206 109 Cong. Rec. 9205 207 109 Cong. Rec. 9205 208 109 Cong. Rec. 9205 209 109 Cong. Rec. 9762 210 109 Cong. Rec. 9970; 109 Cong. Rec. 10440 211 110 Cong. Rec. 2577 212 110 Cong. Rec. 2577-84 213 110 Cong. Rec. 2583 214 110 Cong. Rec. 2577-84, 110 Cong. Rec. 15897
159 160

43

110 Cong. Rec. 2578 110 Cong. Rec. 2578 217 110 Cong. Rec. 2579 218 110 Cong. Rec. 15897 219 433 U.S. 321 (1976) 220 499 U.S. 187 (1991) 221 Dothard at 323 222 Dothard at 324 223 Dothard at 324-326 224 Dothard at 323 225 Dothard at 329-330 226 Dothard at 331 227 Dothard at 334 228 Dothard at 334 229 Dothard at 342 230 Dothard quoting Unlawful Employment Practices 42 U.S.C. 2000e-2 at 342 231 Dothard at 342 232 United Auto Workers at 190 233 United Auto Workers at 191-192 234 United Auto Workers at 192-193 235 United Auto Workers quoting United Auto Workers v. Johnson Controls, Inc. 886 F.2d 871 (1989) quoting Dothard v. Rawlinson 433 U.S. 321 (1976) at 193 236 United Auto Workers at 196 237 United Auto Workers at 197 238 United Auto Workers at 197 239 United Auto Workers at 197 240 United Auto Workers at 200-201 241 United Auto Workers at 201 242 United Auto Workers at 202 243 United Auto Workers at 202 244 United Auto Workers at 203-204 245 United Auto Workers at 211
215 216

44

Brown, Carrie. Rosies Mom: Forgotten Women Workers of the First World War, Boston: Northeastern University Press, 2002. Honey, Maureen. Creating Rosie the Riveter: Class, Gender, and Propaganda during World War II, Amherst: University of Massachusetts Press, 1994. Laughlin, Kathleen A. Womens Work and Public Policy: A History of the Womens Bureau, U.S. Department of Labor 1945-1970, Boston: Northeastern University Press, 2000. McCullough, David. Truman, New York: Simon & Schuster, 1992. Sealander, Judith. As Minority Becomes Majority: Federal Reaction to the Phenomenon of Women in the Work Force, 1920-1963, Westport: Greenwood Press, 1983. Smith, Jason Scott. Building New Deal Liberalism: The Political Economy of Public Works 1933 1956, New York: Cambridge University Press, 2006. The American Presidency Project. Democratic Party Platform of 1944. Accessed November 30, 2012. http://www.presidency.ucsb.edu/ws/index.php?pid=29598 The American Presidency Project. Democratic Party Platform of 1948. Accessed November 30, 2012. http://www.presidency.ucsb.edu/ws/index.php?pid=29599 The American Presidency Project. Republican Party Platform of 1944. Accessed November 30, 2012. http://www.presidency.ucsb.edu/ws/index.php?pid=25835 The American Presidency Project. Republican Party Platform of 1948. Accessed November 30, 2012. http://www.presidency.ucsb.edu/ws/index.php?pid=25836.