Sex Discrimination

AuthorJeffrey Lehman, Shirelle Phelps

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Discrimination on the basis of gender.

Women have historically been subjected to legal discrimination based on their gender. Some of this discrimination has been based on cultural stereotypes that cast women primarily in the roles of wives and mothers. In the patriarchal (male-dominated) U.S. society, women have been viewed as the "weaker sex," who needed protection from the rough-and-tumble world outside their homes. Such beliefs were used as justifications for preventing women from voting, holding public office, and working outside the home. In a culture that portrayed wives as appendages of their husbands, women have often been invisible to the law.

The ability of women to use the law to fight sex discrimination in employment, education, domestic relations, and other spheres is a recent development. With the passage of Title VII of the CIVIL RIGHTS ACT OF 1964 (42 U.S.C.A. § 2000e et seq.), discrimination in employment based on sex became illegal. In the 1970s and 1980s, the U.S. Supreme Court began to wrestle with the implications of sex discrimination in many contexts, often with conflicting or ambiguous results. Employers and social institutions have sought to justify discriminatory treatment for women on the basis of long-held traditions. In some cases the Court has agreed, while in others the justifications have been dismissed as cultural stereotypes that have no basis in fact.

Historical Background

To reshape gender roles, women have had to overcome centuries of tradition, much of which originated in medieval England. After the Norman Conquest in 1066, the legal status of a married woman was fixed by COMMON LAW. The identity of the wife was merged into that of the husband; he was a legal person but she was not. Upon marriage, he received all her PERSONAL PROPERTY and managed all property that she owned. In return, the husband was obliged to support his wife and children.

This legal definition of marriage persisted in the United States until the middle of the nineteenth century, when states enacted married women's property acts. These acts conferred

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legal status upon wives and permitted them to own and transfer property in their own right, to sue and be sued, and to enter into contracts. Although these acts were significant advances, they dealt only with property a woman inherited. The husband, by placing title in his name, could control most of the assets acquired during marriage, thereby forcing his wife to rely on his bounty.

The passage of the married women's property acts resulted from the efforts of feminist reformers, including LUCY STONE, ELIZABETH CADY STANTON, and SUSAN B. ANTHONY. The feminist political movement began in the nineteenth century with the call for female suffrage. At a convention in Seneca Falls, New York, in 1848, a group of women and men drafted and approved the Declaration of Sentiments. This declaration, which was modeled on the language and structure of the Declaration of Independence, was a BILL OF RIGHTS for women, including the right to vote. Stone, Stanton, and Anthony were persistent critics of male refusal to grant women political and social equality. Not until the NINETEENTH AMENDMENT to the U.S. Constitution was ratified in 1920, however, did women have VOTING RIGHTS in the United States.

Sex Discrimination and Title VII: An Unusual Political Alliance

The legislative battle to pass the CIVIL RIGHTS ACT OF 1964 (42 U.S.C.A. § 2000e et seq.) required the leadership of President LYNDON B. JOHNSON and the bipartisan support of legislators from outside the South. The original draft of title VII of the act, which prohibits employment discrimination, limited its scope to discrimination based on race, color, religion, and national origin. Sex was not included as a "protected class" because supporters of the bill feared such a provision might kill the act itself.

In February 1964 Representative Howard W. Smith, a powerful Democrat from Virginia, offered an amendment to include sex as a protected class. Supporters of the bill were suspicious of Smith's motives, as he had, for three decades, consistently opposed CIVIL RIGHTS laws prohibiting racial discrimination. Many suspected that he was including sex discrimination in title VII in an attempt to break the bipartisan consensus for the entire bill.

Smith, however, claimed he had no ulterior motive. Since the 1940s he had formed a loose alliance with the National Woman's party (NWP), a feminist organization headed by ALICE PAUL. Since 1945 Smith had been a sponsor of the EQUAL RIGHTS AMENDMENT, which Paul had originally drafted in 1923. Smith said he had introduced the amendment to title VII at the request of Paul and the NWP.

Sponsors of the bill urged that the amendment be defeated, but female representatives, such as Martha W. Griffiths of Michigan, led a bipartisan effort to adopt the amendment. The amendment was passed by a vote of 164 to 133, with most southern Democrats voting for it. The Senate then adopted the House language. If Smith and the other southerners thought the amendment would scuttle the bill, they were mistaken. The law was enacted on July 2, 1964, with Smith and other southern Democrats voting against the entire bill. Nevertheless, Smith had proved an unlikely hero for WOMEN'S RIGHTS.

The U.S. Supreme Court confronted the issue of sex discrimination in Bradwell v. Illinois, 83 U.S. 130, 21 L. Ed. 442 (1872). MYRA BRADWELL sought to practice law in Illinois, but the Illinois Supreme Court refused to admit her to the bar because she was a woman. Bradwell appealed to the U.S. Supreme Court, arguing that the refusal to grant her a license violated the PRIVILEGES AND IMMUNITIES CLAUSE of the FOURTEENTH AMENDMENT. By an 8?1 vote, the Court rejected Bradwell's argument. Though the majority opinion was on the argument that the Privileges and Immunities Clause applied only to matters involving U.S. citizenship and not state citizenship, a concurring opinion written by Justice JOSEPH P. BRADLEY and signed by two

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other justices revealed the cultural stereotypes that lay behind the legal analysis. Observing that there is "a wide difference in the respective sphere and destinies of man and woman," Bradley went on to write that the "natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life." For Bradley, the "paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator."

By the late nineteenth century, mass immigration from Europe to the industrialized cities of the United States had resulted in many immigrant women seeking work in factories. Though the Supreme Court was hostile to state laws that sought to regulate working conditions, the Court was more...

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