The first major federal legislative response to the civil rights movement, the Civil Rights Act of 1964 prohibited discrimination on the basis of race, national origin, and religion in several important arenas, including public accommodations, education, and employment. The employment provision (Title VII) also barred discrimination on the basis of sex. No provision of the Civil Rights Act prohibited discrimination on the basis of sexual orientation.
The authors of the Civil Rights Act did not intend to include sex discrimination in any of its provisions. Sex discrimination was introduced into the civil rights debate by southern opponents of the measure who sought to flummox its supporters and kill it through ridicule.
Congressional majorities shrugged off early efforts by southern men to add "sex" to the bill's provisions. But white women's rights advocates in the House of Representatives were incited by the laughter that greeted the motion to bar sex-based discrimination in employment. Congresswoman Martha Griffiths led the fight to take the employment amendment seriously. She argued "as a white woman" concerned that "when this bill is passed ... white women will be last at the hiring gate." Griffiths warned her male colleagues that a vote against the sex discrimination amendment would be a vote against their own wives and daughters. In language recalling the racist appeals of white suffragists during Reconstruction, Griffiths charged, "It would be incredible ... that white men would be willing to place white women at such a disadvantage except that white men have done this before ... your greatgrandfathers were willing as prisoners of their own prejudice to permit ex-slaves to vote, but not their own white wives."
Not all women policy activists shared Griffiths's position. The president's Commission on the Status of Women and the U.S. Women's Bureau opposed an unqualified ban on sex-based employment practices. Key men in the House tried to use the division of opinion among women leaders to defeat the amendment. With eleven of the twelve women in the House speaking in favor of the amendment, however, it passed.
Congresswoman Griffiths, along with the National Organization for Women (NOW), women's unions, and individual women, struggled to ensure that the new Equal Employment Opportunity Commission (EEOC) would enforce the sex-discrimination provision. Many women also pursued Title VII claims through the courts, winning landmark decisions that removed sex-based restrictions on occupational choice; changed hiring, promotion, and benefits practices that disadvantaged women; and brought sexual harassment within the jurisdiction of discrimination law.
Although Native Americans subject to tribal authority were not covered by the Civil Rights Act, Congress extended equal protection principles to Indians in relation to tribal governments in the Indian Civil Rights Act of 1968. This permitted Native American women to sue tribal governments for gender discrimination (e.g., Santa Clara Pueblo v. Martinez). Because of the concept of tribal sovereignty, however, the measure has been difficult to enforce.
How powerful a legal weapon Title VII can be depends on the EEOC and the courts. During the 1980s an increasingly conservative Court eviscerated Title VII in both gender and race decisions. To correct the Court, Congress enacted the Civil Rights Act of 1991. The new measure restored key precedents of the 1970s (e.g., Griggs v. Duke Power).
The Civil Rights Act of 1991 also broadened the remedies available to women under Title VII. Under the 1964 act, remedies in sex discrimination complaints were limited to back pay, reinstatement, and other job-specific claims. Because a nineteenth-century statute permitted damage claims in race discrimination cases, successful race cases could impose severe financial burdens on employers. Many women felt that sex discrimination was, therefore, an unequal sister in the structure of employment law. This point was brought to light by sexual harassment victims/survivors for whom back pay offered only token remedy and for whom reinstatement alongside harassers offered no remedy at all.
In the aftermath of Anita Hill's brave testimony against Supreme Court nominee Clarence Thomas in 1991, Congress ushered a strengthened Civil Rights Act toward passage. However, while the new law provided for damages in sex discrimination cases, it placed a ceiling on damages available to women and calibrated the ceiling according to the size of employer. In the realm of remedies for proven discrimination—the "stick" that encourages employers to comply with the law—women with sex discrimination claims remain second-class citizens.
Gwendolyn Mink
See also
Title VII.
