The Civil Rights Act of 1964 protects people from discrimination in employment, public accommodations, public facilities, federally-assisted programs, and other areas. In most of these, it prohibits discrimination on the basis of race, color, national origin, and religion.
Title VII of the Civil Rights Act, which deals with employment discrimination, adds sex as a protected category. Over the years, Title VII’s prohibition on sex discrimination has been expanded to include sexual harassment and pregnancy discrimination. One has to wonder, though—how did sex end up in Title VII as a protected category, if it’s not anywhere else in the law? Join me for a historical odyssey into the realm of unintended—but awesome—consequences.
President Lyndon B. Johnson was adamant about getting the Civil Rights Act passed. It would prove to be one of the signature achievements of his time in office, and the major event that sparked the reshuffling of party positions*.
Not all Democrats were as keen on civil rights legislation as LBJ was in 1964. The focus of this particular story in Howard Worth Smith (1883-1976), a Democratic Representative from Virginia. The main issue on everyone’s mind at that time was racial discrimination, and Smith was not a fan of that kind of civil rights legislation. He was, however, apparently quite sympathetic to women’s rights**.
Rep. Smith used procedural maneuvers to stall the bill. About two days before it was scheduled for a vote, he added provisions prohibiting employment discrimination on the basis of sex:
Mr. Smith, long-time Chairman of the House Committee on Rules—and not a civil rights enthusiast—offered his amendment in a spirit of satire and ironic cajolery. In support of the amendment he quoted at length from a letter he had just received from a lady, presumably one of his constituents:
The census of 1960 shows that we had 88,331,000 males living in this country, and 90,992,000 females, which leaves the country with an “imbalance” of 2,661,000 females
Just why the Creator would set up such an imbalance of spinsters, shutting off the “right” of every female to have a husband of her own, is, of course, known only to nature
But I am sure you will agree that this is a grave injustice to womankind and something the Congress and President Johnson should take immediate steps to correct, especially in this election year
Would you have any suggestions as to what course our Government might pursue to protect our spinster friends in their “right” to a nice husband and family?
After the laughter died down in the House chamber, Smith continued his comments:
I read that letter just to illustrate that women have some real grievances and some real rights to be protected. I am serious about this thing. I just hope that the committee will accept it. Now, what harm can you do this bill that was so perfect yesterday and is so imperfect today-what harm will this do to the condition of the bill?
The conventional wisdom of history is that Smith’s goal was to kill the entire bill but making it even more controversial. By most accounts, Smith genuinely supported civil rights protections based on sex. He had sponsored the Equal Rights Amendment in the House for years. He almost certainly did not expect his amendment to succeed that day, and his goal appeared to be to kill the entire civil rights bill. Instead, his amendment passed by a vote of 168 to 133. This was at least partly due to a “five-minute” rule that limited deliberation on proposed amendments to the bill. The bill passed with the sex discrimination provisions intact.
As I’ve mentioned, the political alignment here won’t make much sense from the perspective of 2017. Northern Democrats reportedly opposed sex-based civil rights protections at the time. Southern Democrats opposed race-based civil rights protections, and largely voted for Smith’s amendment. The Republicans of the time ended up voting for both. So I’d say that totally backfired on Smith—but it’s good news for people today.
* When 21st-century conservatives try to claim that it is relevant to today’s politics to point out the the Republican Party was the one that fought to eliminate slavery, they have to ignore everything that has happened in this country since at least 1964. That’s a topic for another day, though.
Photo credits: Howard Worth Smith, by U.S. Congress [Public domain], via Wikimedia Commons; Lyndon Johnson signing Civil Rights Act, July 2, 1964, by Cecil Stoughton, White House Press Office (WHPO) [Public domain], via Wikimedia Commons.