Rights by Fortune or Fight? Reexamining the Addition of Sex to Title VII of the Civil Rights Act

• DOI: http://doi.org/10.1111/lsq.12225
• Author: Katherine Krimmel
• Date: 01 May 2019
• Published date: 01 May 2019

271

LEGISLATIVE STUDIES QUARTERLY, 44, 2, May 2019

DOI: 10.1111/lsq.12225

KATHERINE KRIMMEL

Barnard College

Rights by Fortune or Fight?

Reexamining the Addition of Sex to

Title VII of the Civil Rights Act

It is widely believed that the extension of protection against employment

discrimination to women through Title VII of the Civil Rights Act (CRA) was a

fluke, the product of an attempted “killer amendment” by civil rights opponents

gone awry. My analysis challenges this conventional wisdom, showing that the

coalition of Republicans and southern Democrats in support of the sex amend-

ment to Title VII was consistent with broader patterns of support for the Equal

Rights Amendment (ERA) in the early to mid-20th century. In other words, sup-

port appears to have been sincere, not sophisticated—proponents preferred a

CRA with the sex amendment to one without. I proceed to show that concern

about the direct impact on women, and not simply the instrumental impact on

labor, played an important role in motivating this support. But, I also find reason

for caution in interpreting support for workplace rights as evidence of broad sup-

port for women’s rights at this time.

A “Mischievous Joke”?

The prohibition of sex discr imination i n employment through

Title VII of the Civil Rights Act (CRA or “the Act”) was th e most

important exten sion of women’s rights since the rati fication of the

19th Amendment in 1920. In addition to its dire ct role in reducing

discri minatory practices l ike firing women upon marr iage, it also

served as a bas is for the Family and Medical Le ave Act of 1993

and the development of legal protections ag ainst sexual h arass-

ment in the workplace (Burst ein, Bricher, and Einwohner 1995;

MacKinnon 1979). And yet, half a century later, the politic al sci-

ence literatu re has had very litt le to say about the politics of the

CRA with respe ct to sex.1

This likely ste ms in part from the c ommon perception that

women were not actually mea nt to be protected by the Act, that

© 2018 Washing ton University in St. Louis

272 Katherine Krimmel

the inclusion of sex in Title VII wa s a fluke. According to con-

ventional lore, southern Democrats, desperate to m aintain the

region’s racial hierarchy, introduced the ame ndment adding sex

to Title VII to demonstrate the absu rdity (as they saw it) of non-

discri mination efforts a nd sap political suppor t for the Act. This

is typical ly thought to be a cun ning defensive tactic—as sp ecious

as it was spontaneous— that was not expected or even intended to

yield a real extens ion of women’s rights.

In political sc ience ter minology, the sex amendme nt is

thought to be a “killer a mendment” gone awry.2 Support for a

killer amendment ref lects sophisticated rather than sincere pref-

erences. That is , members of Congres s (MCs) voting in favor of

the amendment would actu ally prefer the unamended bill to the

amended version; but they bel ieve the unamended version will

pass (i.e., beat the status quo) while the amende d version will

not (Groseclose and Milyo 2010).3 When the would-be “ki ller”

missed its mark—the CRA passed—Republicans and souther n

Democrats pur portedly wound up doubly disc ontented, stuck

not only with race-ba sed protections th ey did not want, but also

sex-based protections that few members of the chamber act ually

wanted .

Reflecti ng and propagating this popular percept ion, the

New Republic called the sex ame ndment a “mischievous joke,”

and the Herald Tribu ne deeme d it “an unplanned by-product of

a confused debate.”5 This image has proven durable in academ ic

as well as popular ac counts of Title VII. In 2015, Slate published

an article on Howard Smith, the Vi rginia Demo crat who intro-

duced the sex ame ndment, titled “The Acc idental Femini st.”

Many scholars, including Howard Smith’s biographer, have sup-

ported some version of th is conventional wisdom about Title VII

(Dierenf ield 1987; Harvey 1998; MacKinnon 1991; Orfield 1975;

Schultz and Petterson 1992; Whalen and W halen 1985, inter alia).

Its effects also rea ched beyond academ ic and popular dis-

course, as it spread to p olitical i nstitutions. The sex amendment’s

reputation was delegiti mizing and led to lax enforcement by the

Equal Employment Opportu nities Commission (EEOC), the

agency created by the CR A to enforce Title VII (Costain 1994;

Freeman 1991; Harrison 1989; Rupp and Taylor 1987). EEOC ex-

ecutive director Her man Edelsberg dismisse d the sex clause as

a “fluke” that was “conc eived out of wedlock” and charge d a

temp with proces sing sex-based clai ms (Menand 2014). Indeed,

the agency’s refusal to take sex d iscrim ination charges s eriously

273Rights by Fortune or Fight?

motivated activists to e stablish the National Organ ization for

Women (NOW). The perception that sex was not intended to b e

included in Title VII a lso permeated the judici ary, leading to con-

servative interp retation by many judges hear ing sex discr imina-

tion cases (Bird 1997; Osterman 20 09).

This view of the s ex amendment is under standable, given

the whimsic al air surround ing its initial c onsideration. After

his casual i ntroduction of the amendme nt on February 8, 1964,

Howard Smith attempted to read a tong ue-in-che ek letter from a

woman bemoaning the gender imbalance i n the population, and

inquiring about the govern ment’s plans to intervene “to protec t

our spinster friends in their r ight to a nice husband and fam ily.”5

The letter evoked such laughter i n the chamber, Smith neede d

to pause his spe ech. On what would become known as “Ladies’

day” in the House, the proposed extension of employment dis-

crimi nation protection to women did not appear s erious, at least

not at first.

The nature of the coal ition supporting the sex amendment

also raised su spicion among observer s. Smith had long stym ied

civil rights l egislation as chair of the House Rules Committe e

until the thre at of a discharge petition forced h im to allow the

CRA to proceed i n 1964. He was not the only sex amendment

advocate to oppose the CRA— of the ten male congressmen who

spoke in support of the amend ment, nine would proce ed to vote

against the Act. More broadly, while there was not a re corded

roll-call vote on the sex a mendment, eviden ce indicate s it was

supported mostly by Republica ns and southern Democrats.7 As a

general matter, of course, th is grouping was not unusua l—these

two blocs came together as a “cons ervative coalition” in suppor t

of various issues dur ing this pe riod. But, given their ideology

and opposition to civil r ights, along with the South’s resistance

to women’s suffrage a few decades earlier, their position at the

helm of sex amendme nt advocacy has raise d widespread doubt

that Title VII’s protections were really meant to b e extended to

women. In this light, it is ea sy to see why many scholars and

media comme ntators “dismiss the legislative history of the sex

discri mination prohibition as aberrant congress ional behavior,

which is largely to be ignore d” (Bird 1997, 137).

And yet, I argue it warrants closer scrutiny. To begin, the

conventional wisdom on Title VII bel ies a great deal of re search

on representation and r ights. While there are cer tainly errors and

idiosyncrasi es in the legislat ive process, it would be most unusu al