1 Congressional Intent versus Judicial Application of Sex Discrimination in Title VII The monumental passage of the Civil Rights

Act of 1964 was made all the more impressive by the addition of sex as a protected class. While the motives behind the introduction of the amendment were undoubtedly sinister, Congress as a wholeas judged by remarks in the Congressional Recordwas most definitely sincere in agreeing to the amendment. During the short debate, two specific concerns were raised by individual Representatives: the economic security of married women and the assurance of equal opportunity hiring for qualified women. Twelve years later, an unforeseen Supreme Court decision led to the protection of pregnant women from disparate treatment being added to the list. Within these three areas, the courts have varied in their commitment to congressional intent. Marriage has very limited case law while equal opportunity has been dealt with in a broad and decisive manner, and protection of pregnancy required an Act of Congress. In addition to these three areas, however, legal scholars note that the courts created an area of concern which was neither considered nor discussed by members of Congress in 1964 but rather was created by the courtssexual harassment. On February 8, 1964, Rep. Howard W. Smith of Virginia introduced an amendment to add sex to protected classes of the then Civil Rights bill, including in Title VII.1 Smith, as Chairman of the Rules Committee, was extremely powerful. Moreover, as a conservative Southern Democrat, he was bitterly opposed to the Civil Rights bill. This combination allowed Smith to lead a coterie of fellow Southerners in an attempt to scuttle the bill. Of the twentytwo individual Representatives who spoke on the amendment, eleven were Southerners.2 Their arguments in favor of the amendment were typified by Rep. Mendel Rivers of South Carolina, who said, it is incredible to me that the authors of this monstrosity [the Civil Rights bill]whomever they arewould deprive the white woman of mostly AngloSaxon or Christian heritage equal opportunity before the employer.3 The duplicitous nature of Smith and his allies is further betrayed by the fact that while every

2 Southerner who spoke during debate on the amendment voiced strong support for it, not a single one voted for the bill as a whole when it came up for vote six months later with the exception of Rep. Ross Bass of Tennessee.4 The Southerners, however, underestimated the rest of Congress. Though Rep. Emanuel Celler of New York was initially dismissive of Smiths amendment, the tone of debate became much more serious after Rep. Frances Bolton of Ohio and Rep. Martha Griffiths of Michigan rose in its defense.5 In her opening statements, Griffiths pointed out that to foreign observers, the status of white women and African Americans was almost indistinguishable in the 1940s; since race was already included in the bill, Griffiths hoped that by including sex, both women and African Americans would finally be protected at the hiring gate.6 Later in the debate, Rep. Katherine St. George of New York asked, Why should women be denied equality of opportunity? Why should women be denied equal pay for equal work? That is all we are asking. We do not want special privileges.7 This is not to say that there were no objections to the amendment. Six representatives made statements for the Record in opposition to the Smith amendment,8 though the intent behind the opposition was not based its content. Rep. Celler, while initially condescending in his remarks, added that he felt the amendment was ill timed, ill placed, and improper coming from Rep. Smith.9 Though Smith was well known as a supporter of womens causes like the Equal Rights Amendment, his actions of working through his Southern colleagues instead of Representatives like Edith Green of Oregon, who authored the Equal Pay Act, raised questions about his true motives.10 Green herself also raised the question of Smiths motivations, but went on to say that for every slight against American women, there were ten against African Americans. She also believed that the amendment would needlessly complicate the bill and, in fact, be used to help destroy this section of the bill by some of the very people who today support it.11

3 Despite the suspicion concerning Smith, however, the amendment passed 168 to 133.12 Since debate on the amendment was so short, very few specific concerns were raised. Among those who spoke on specific issues were Rep. Bass of Tennessee and Rep. Griffiths of Michigan. Bass had come to the debate directly from the airport and had spoken to a woman working for the airline who said she would lose her job if she were to get married, a fact which angered Bass, who said, I want the record to show that I am for both the unmarried and the married women.13 Griffiths, on the other hand, was more concerned with employment opportunities, specifically for qualified women regardless of stereotypes. She gave the example of a 100pound woman applying to drive a haulaway truck on the basis that she had previously been a streetcar motorman and a school bus driver.14 These concerns coupled with the fact that every Representative who spoke against including sex as protected class voted for the bill as a whole put to rest the theory that Congress was anything but sincere in adding sex to Title VII.15 Judicial application of these specific congressional concerns has been varied. A case almost exactly analogous to Rep. Bass concern was heard by the Seventh Circuit Court in 1971. In Sprogis v. United Air Lines, Inc.,16 plaintiff Mary Burke Sprogis worked as a flight attendant for United Air Lines; on June 1, 1966, she was discharged for being married.17 At that point, United had a policy of only hiring unmarried female flight attendants though no such restrictions were placed upon men.18 Sprogis filed a charge with the Equal Employment Opportunity Commission that August alleging that her discharge was illegal sex discrimination under Section 703(a)(1) of the Civil Rights Act of 1964.19 The majority opinion reasoned that United Air Lines had first violated a 1965 EEOC interpretation of Section 703(a)(1) which states that any rule forbidding the employment of married women which is not applied to men is sex discrimination because even though the rule only applies to married women, so long as sex is a factor in the application of the rule, such application involves

4 a discrimination based on sex.20 The court quoted Griggs v. Duke Power Co. that the EEOC interpretation was entitled to great deference21 as it was a reasonable interpretation which agreed with the legislative history of Title VII.22 The court concluded that in forbidding discrimination on the basis of sex, Congress intended to target the entire range of disparate treatment as based on sex stereotypes; section 703(a)(1) subjects to scrutiny and eliminates such irrational impediments to job opportunitieswhich have plagued women in the past.23 The summary judgment in favor of Sprogis was affirmed and the case was remanded to the District Court for relief; the Supreme Court denied United Air Lines certiorari.24 While Sprogis directly addressed the concerns Rep. Bass expressed for married women, the subsequent application of Title VII to marriage by the courts has been weak. The Supreme Court has only revisited Sprogis in cases related to marriage twice. Both of these cases were results of the same United Air Lines policy that was litigated in Sprogis. Unfortunately for married women, both of these cases, United Air Lines, Inc. v. Evans25 and United Air Lines, Inc. v McDonald26 were not resolved by the Supreme Court and instead were bogged down in issues of class action and statutes of limitations. The latter case only ruled that McDonalds motion to intervene on behalf of her class was legitimate;27 the former reversed a Circuit Court decision and upheld the District Court, which had dismissed the Title VII claim.28 The only other time the Supreme Court has cited Sprogis has been due to the position it established on disparate treatment, the first example being Los Angeles Department of Water & Power v. Manhart.29 Issues of employment opportunity for women such as those discussed by Rep. Griffiths have fared better before the courts than issues of marriage protection. Courts have intervened numerous times to ensure that women have the opportunity to prove themselves capable of performing jobs stereotypically off limits. On the Circuit Court level, Rosenfeld v. Southern Pacific Co.30 provides an early example. Plaintiff Leah Rosenfeld was denied the job of agenttelegrapher as

5 it was the policy of Southern Pacific to deny jobs that required strenuous physical activity to women.31 The majority argued, however, that Congress intended to eliminate subjective assumptions and traditional stereotyped conceptions regarding the physical ability of women to do particular work.32 The majority concluded in this line of reasoning saying that men and women were now meant to be on equal footing33 for employment opportunities and that any employment policy based on sexual stereotypes violates that obligation. Unfortunately, Rosenfeld is an imperfect example of the judicial application of Rep. Griffiths ideas since the position Rosenfeld applied for was eliminated prior to litigation and the decision was only prospective.34 The Supreme Court case UAW v. Johnson Controls, Inc.,35 however, presents a complete example. Defendant Johnson Controls enforced a fetal protection policy which excluded all women from jobs where they would be exposed to high amounts of lead used in battery production.36 Both the District Court and the Court of Appeals ruled in favor of Johnson Controls policy on the basis of business necessity.37 The majority of the Supreme Court, however, disagreed. The majority opinion began by saying that the bias in Johnson Controls policy was obvious;38 fertile men were given the option of working with lead but all fertile women were automatically excluded.39 This policy created classifications based on sex and childbearing capacity rather than simple fertility, meaning that Johnson Controls only cared about protecting the unborn children of its female employees.40 The majority, moreover, stated that the policy could not be neutral because it was not applied to the fertility of male employees.41 Given this line of reasoning, along with analysis specifically related to pregnancy which will be discussed below, the majority found the policy to be illegal sex discrimination, reversed the decisions of the lower courts, and remanded the case for consideration consistent with the decision.42

6 Judicial consideration of pregnancy indeed prompted Congress to review its reasons for including sex as a protected class. In 1976, the Supreme Court ruled in General Electric Co. v. Gilbert43 that excluding pregnancyrelated disability from a general employee disability plan did not constitute sex discrimination under Title VII. The majority reasoned that there were similarities between Congressional language in Section 703(a)(1) and the concept of discrimination as it evolved under the Fourteenth Amendment.44 Since Congress did not define discrimination in Title VII, the existing law under the Fourteenth Amendment would provide a good legal lens through which to analyze General Electric Co.; especially relevant was a recent, similar case from California, Geduldig v. Aiello.45 Geduldig involved a state run disability insurance program which also excluded pregnancy from coverage and was in other ways substantially similar to the program run by General Electric.46 The majority of the Court separated the condition of pregnancy from sex by arguing that while only women can become pregnant, not every classification involving pregnancy is sex-based.47 This allowed the them to reason that since there is no connection between sex and the excluded class, the program is not discriminatory, as the program only, divides potential recipients into two groupspregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.48 With this idea established, the majority argued that there had been no sex discrimination shown to exist either by the terms of General Electrics plan or by its effect; the court therefore reversed the judgments of the lower courts and ruled the plan non discriminatory.49 With the decision in General Electric Co., the Supreme Court uncovered a specific congressional concern that had been overlooked in the short debate on including sex as a protected class. In order to protect the pregnant women from discrimination, Congress acted with unusual swiftness. General Electric Co. was decided on December 7, 1976; H.R. 6075which would

7 eventually become the Pregnancy Discrimination Actwas introduced to Congress on April 5, 1977.50 The bill was slowed by the committee process, however, and was not debated until the next legislative session.51 When the bill was put up for a vote on July 18, 1978, it was met with widespread approval. Rep. Augustus Hawkins of California, the main sponsor of the bill, explicitly stated that the intent of the bill was to overturn the decision in General Electric Co. by clarifying the congressional definition of sex discrimination to include, discrimination based on pregnancy and specifically to define the standards which require that pregnant workers be treated the same as other employees on the basis of their ability or inability to work.52 After a debate almost as short as one which added sex to Title VII, Congress passed the Pregnancy Discrimination Act 376 to 43 with 13 not voting. The clarification of congressional intent had an immediate effect on judicial application of Title VII. Soon after the passage of the Pregnancy Discrimination Act, the Supreme Court decided Newport News Shipbuilding v. EEOC,53 which applied the Pregnancy Discrimination Act to an employer health plan. The plan at Newport News provided pregnancy benefits to female employees to the same extent as all other medical conditions; the plan, however, also covered dependents and provided inferior quality pregnancy benefits to the spouses of male employees than it did to spouses of female employees.54 While the District Court affirmed the plan as legitimate, the Circuit Court panel and en banc reversed the District Court.55 The majority on the Supreme Court argued that not only did the Pregnancy Discrimination Act overturn the decision in General Electric Co., but it rejected the test of discrimination used by the court in that case as well; by applying the correct test, Newport News health plan was illegal sex discrimination because it provided male employees with less comprehensive coverage than it does its female employees56 The majority then stated that in passing the Pregnancy Discrimination Act, Congress made clear that it is discriminatory to treat pregnancy any different from other medical

8 conditions and that Newport News, therefore, unlawfully gives married male employees a benefit package for their dependents that is less inclusive than the dependency coverage provided to married female employees.57 In differentiating between employee and dependent pregnancy coverage, the majority concluded that Newport News violated Title VII by discriminating against its male employees and affirmed the decision of the Court of Appeals.58 Though Newport News was one of the earliest cases involving the Pregnancy Discrimination Actit began in September 1979it is like Rosenfeld in that it does not cover the best example of congressional intent.59 Returning to UAW, however, gives a better example of how the Supreme Court changed course after the congressional response to General Electric Co.. The court noted that the Pregnancy Discrimination Act bolstered60 its conclusion because sex discrimination now includes discrimination because of or on the basis of pregnancy, childbirth, and related medical conditions.61 The court then quoted Newport News, saying, The Pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex.62 The court concludes saying that Title VII as amended regards Johnson Controls explicit classification on the basis of potential for pregnancy as explicit sex discrimination.63 The triple concerns of marriage protection, employment opportunity, and pregnancy non discrimination covers the extent of explicit congressional concerns about sex in Title VIIat least as far as remarks in the Congressional Record are concerned. Legal scholars, however, note that the courts have created an area of concern under sex in Title VII which was never considered, let alone discussed, in Congress. Gradually, the EEOC recognized two types of sexual harassment under Title VII: quid pro quo and hostile environment harassment; EEOC guidelines generally defined sexual harassment as unwelcome sexual advances, requests, and contact, submission to such behavior being

9 made a condition of employment, retaliation for rejection of such behavior, and conduct which has an unreasonable affect on an individuals work environment.64 Meritor Savings Bank v. Vinson established that sexual harassment is actionable under Title VII.65 Indeed, prior to 1986, several courts held that Title VII did not provide for a cause of action for sexual harassment.66 In Meritor, plaintiff Mechelle Vinson claimed that her supervisor, Sidney Taylor, frequently subjected her to unwanted sexual advances, and sometimes forcible rape, during her term of employment; Vinson submitted to these actions for fear of losing her job.67 In a unanimous decision, the Supreme Court argued that Vinson had been discriminated against on the basis of her sex. The court rejected the argument that Title VII only covers tangible or economic loses, quoting LA Dept of Water & Power quoting Sprogis, that is was congressional intent to to strike at the entire spectrum of disparate treatment of men and women in employment.68 The court also recognized that the EEOC guidelines fully supported the idea that sexual harassment leading to a noneconomic loss could violate Title VII.69 The court concluded the sexual harassment was sufficiently severe and pervasive to be actionable and, therefore, affirmed the Circuit Court decision, which reversed the District Court, which had dismissed the Title VII claim.70 From only a few pages in the Congressional Record, sex as a protected class under Title VII has an enormous judicial history. The courts have taken the little guidance Congress has given and created a system which protects both men and women from unfair and damaging treatment by employers and by co-workers. Of the two initial congressional concerns, the courts continue to uphold the ideas of the original Representativesthough better in the case of employment opportunity. The courts have also shown the ability to quickly adapt when they have violated congressional will, as in the case of pregnancy discrimination. Finally, the creation of the idea of sexual harassment and hostile work environments demonstrates the ability of the courts to create law where it is needed when Congress is unwilling to act.

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110 Cong. Rec. 2577 110 Cong. Rec. 2577-84 3 110 Cong. Rec. 2583 4 110 Cong. Rec. 2577-84, 110 Cong. Rec. 15897 5 110 Cong. Rec. 2578 6 110 Cong. Rec. 2578 7 110 Cong. Rec. 2581 8 110 Cong. Rec. 2578 9 110 Cong. Rec. 2578 10 20 Yale J.L. & Feminism 414, 110 Cong. Rec. 2581. 11 110 Cong. Rec. 2581 12 110 Cong. Rec. 2584 13 110 Cong. Rec. 2578 14 110 Cong. Rec. 2579 15 110 Cong. Rec. 15897 16 444 F.2d 1194 (7th Cir. 1971) 17 Sprogis at 1196 18 Sprogis at 1196 19 Sprogis at 1196 20 Sprogis quoting 29 CFR 1604.3(a) at 1198 21 Sprogis quoting Griggs v. Duke Power Co., 401 U.S. 424 (1971) at 1198 22 Sprogis at 1198 23 Sprogis at 1198 24 Sprogis at 1202, United Air Lines, Inc. v. Sprogis, 404 U.S. 991 (1971) 25 431 U.S. 553 (1977) 26 432 U.S. 385 (1977) 27 McDonald at 396 28 Evans at 560 29 435 U.S. 702 (1978) 30 444 F.2d 1219 (1971) 31 Rosenfeld at 1223 32 Rosenfeld at 1225 33 Rosenfeld at 1225 34 Rosenfeld at 1223, Rosenfeld at 1227 35 499 U.S. 187 (1991) 36 UAW at 192 37 UAW at 193 38 UAW at 197 39 UAW at 197 40 UAW at 197 41 UAW at 199 42 UAW at 211 43 429 U.S. 125 (1976) 44 General Electric Co. at 133 45 General Electric Co. at 133, 417 U.S. 484 (1974) 46 General Electric Co. at 133 47 General Electric Co. at 134

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48 49

General Electric Co. quoting Geduldig v. Aiello 429 U.S. 125 (1976) at 135 General Electric Co. at 135 50 123 Cong. Rec. 10463 51 124 Cong. Rec. 21434 52 124 Cong. Rec. 21345 53 462 U.S. 669 (1983) 54 Newport News at 670 55 Newport News at 675 56 Newport News at 676 57 Newport News at 684 58 Newport News at 685 59 Newport News at 674 60 UAW at 198 61 UAW at 199 62 UAW quoting Newport News Shipbuilding v. EEOC 462 U.S. 669 (1983) at 199 63 UAW at 199 64 33 How. L.J. 1, 6 65 477 U.S. 57 (1986) 66 33 How. L.J. 1, 2 67 Meritor at 59-60 68 Meritor quoting Los Angeles Department of Water & Power v. Manhart 435 U.S. 702 (1978) quoting Sprogis v. United Air Lines, Inc. 444 F.2d 1194 (7th Cir. 1971) at 64 69 Meritor at 65 70 Meritor at 65, 73