Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women's Lives at Work

Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women's Lives at Work

by Gillian Thomas

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Product Details

ISBN-13: 9781466878976
Publisher: St. Martin's Press
Publication date: 03/08/2016
Sold by: Macmillan
Format: NOOK Book
Pages: 272
Sales rank: 109,044
File size: 1 MB

About the Author

GILLIAN THOMAS is a Senior Staff Attorney with the American Civil Liberties Union’s (ACLU) Women’s Rights Project. She previously litigated sex discrimination cases at the U.S. Equal Employment Opportunity Commission and Legal Momentum (formerly NOW Legal Defense and Education Fund). Her work has appeared in The New York Times, The Los Angeles Times, The Atlantic, and Slate, and she has been interviewed by NPR and The Wall Street Journal, among others. She lives in Brooklyn.
GILLIAN THOMAS is a Senior Staff Attorney with the American Civil Liberties Union’s (ACLU) Women’s Rights Project. She previously litigated sex discrimination cases at the U.S. Equal Employment Opportunity Commission and Legal Momentum (formerly NOW Legal Defense and Education Fund). Her work has appeared in The New York Times, The Los Angeles Times, The Atlantic, and Slate, and she has been interviewed by NPR and The Wall Street Journal, among others. She lives in Brooklyn and is the author of Because of Sex.

Read an Excerpt

Because of Sex

One Law, Ten Cases, and Fifty Years That Changed American Women's Lives at Work


By Gillian Thomas

St. Martin's Press

Copyright © 2016 Gillian Thomas
All rights reserved.
ISBN: 978-1-4668-7897-6



CHAPTER 1

Women and Children Last

Phillips v. Martin Marietta Corporation (1971)


On a hot Florida night in September 1966, Ida Phillips sat down at her kitchen table to write a letter. Her small frame bowed over a tablecloth printed with green and orange flowers, she quickly filled three small pages with her tidy cursive. "To the President of the United States," she wrote. "As of this date, September 6, 1966 at 7 p.m., I answered an employment ad of Martin Co. of Orlando, Fla. in which the co. seeks 100 assembly trainees. However after completing my application I was told by the receptionist that my application could not be honored due to the fact that I have a pre-school child."

A neighbor had alerted Phillips to the newspaper notice placed by the Martin Marietta Corporation, a missile manufacturer with a sprawling facility ten miles from downtown Orlando. With a workforce numbering in the thousands, it was one of the largest employers in the city. Entry-level jobs on the assembly line paid up to $125 a week, more than double what Phillips was earning as a waitress at the Donut Dinette. Even better, the job came with a pension plan and benefits, including insurance. "You'd better get down there early," the neighbor advised. Because he worked at Martin Marietta, he told Phillips to list him as a reference. "There's gonna be a lot of people over there looking for that job."

Phillips resolved to be one of them. Thirty-two years old and the mother of seven children ranging in age from three to sixteen, she was barely scraping by. Every day she counted up the tips that she'd made during her shift and decided what she could afford to buy for that night's supper; the little bit she had left over got tucked away to cover the bills. She certainly couldn't count on the wages her husband, Tom Phillips, got from working as a mechanic. Those he usually drank.

So Phillips, a vivacious, dimpled redhead, had driven the ten miles to the Martin Marietta facility on Kirkman Road to submit an application. When she got to the front of the line, the receptionist asked her if she had any preschool-age children. Hearing that Phillips had a three-year-old, the woman declined to let her apply. It didn't matter that Phillips's daughter was enrolled in day care or that she also had plenty of backup child care, including a sister who lived nearby and the stay- at-home mother who lived just next door. The company simply wouldn't hire women with kids that young. "I felt like the world had caved in on me," Phillips recalled. "I had my hopes up so much for it." She needed those wages, and her kids needed those benefits.

That's when Phillips decided to write President Lyndon Johnson. "My President, may I say that I believe that this is unjust from the policies that you have administered during your term of office," she implored. "As equal opportunities, as equal employment and constitutional rights." Phillips hadn't grown up paying much attention to politics, but she had recently registered to vote and started "read[ing] the papers cover to cover." She may not have known specifically about the 1964 Civil Rights Act, but she plainly suspected that Martin Marietta was doing something unlawful.

Phillips's daughter, Vera Tharp, remembered that when their neighbor stopped by that night to check how Phillips had made out, he was incredulous. After all, he had kids in preschool and the company had never objected. "You need to go back over there," he urged, "and you just ask them why." Phillips agreed and returned to the plant the following day, but the receptionist wasn't giving any explanations. She just repeated the rule: Women with small children were not eligible for hire.

Less than a week after she'd put her letter in the mail, Phillips got a response from the White House. Her complaint, she was told, had been forwarded to the U.S. Equal Employment Opportunity Commission, the federal agency tasked with enforcing Title VII, for further investigation.

The following summer, the EEOC issued a decision in Phillips's favor. In November 1967, having tried unsuccessfully to convince the company to settle the case by giving Phillips the job she'd applied for, the EEOC mailed a notice to Phillips, who by then had moved with her family to Jacksonville. The agency had done all it could, it said, but she had the right to continue the case on her own by filing a lawsuit in federal court. Phillips definitely wanted to press on; she was too angry not to. Now she needed to find a lawyer.


* * *

The first attorney Phillips called told her, in her words, "he didn't think enough of the case to fool with it." Undeterred, she said she got the idea she "should look for a Negro attorney, because [I] knew they knew more about civil rights." A prominent African American attorney in town, Earl Johnson, was running for City Council, so Phillips met with him. Unfortunately, the campaign was taking up most of his time, he told her, and he referred her to a young black lawyer who'd just joined his law office, Reese Marshall.

Then just a year out of Howard University Law School, Marshall was participating in the fledgling but already illustrious internship program at the NAACP Legal Defense and Educational Fund. Founded in 1940 by future Supreme Court Justice Thurgood Marshall, LDF was the country's preeminent litigation firm attacking the racial inequality that was still commonplace in American life — in education, voting, the criminal justice system, housing, public accommodations, and employment. LDF had devised and executed the litigation strategy attacking the "separate but equal" legal doctrine that had culminated in the Supreme Court's landmark Brown v. Board of Education decision in 1954.

Recruiting and training foot soldiers to help wage the civil rights battle in the courts, the LDF internship program included a one-year stint in LDF's New York headquarters that Marshall had just completed, followed by three years litigating in the field under the tutelage of a more experienced attorney. Marshall was spending his three years with Johnson, one of LDF's national network of "cooperating attorneys," who represented Florida's NAACP chapter.

Today a solo practitioner in Jacksonville specializing in personal injury cases, Marshall has the sort of languid, sonorous voice, wide smile, and easy laugh that convey calm; but back in the 1960s, he handled cases that were anything but. Throughout Florida's Klan country, he represented indigent black defendants facing lengthy sentences for trumped-up "crimes" like spitting on the sidewalk.

Despite his professional focus on dismantling the Jim Crow regime and despite Ida Phillips's being white, Marshall felt a personal affinity for her story. Like Phillips, Marshall's mother had little formal education, having left school in the fourth grade. A single mother of four, she moved to New York City to try to make a better living when Marshall was still in elementary school. He and his two older brothers stayed in Fort Lauderdale with his grandparents, farmers who grew beans and eggplants. (His older sister was already away at college.) When Marshall contracted polio in the ninth grade, his mother, worried about the substandard medical care available to a black child in 1950s Florida, sent for him. Marshall and his brothers took a Greyhound bus to join her in the Bronx. In the years to come, he grew up watching his mother make ends meet alone while also managing to shepherd three of her four children to college graduation.

Marshall was intrigued by Phillips's case. Pulling out a statute book, he reread Title VII, which had gone into effect the prior year, and registered for the first time that on the list of protected characteristics was "sex." ("Sure enough," he later recalled, "I looked and said, yeah, there it is.") Martin Marietta's policy, it seemed to Marshall, presented a pretty straightforward case of sex discrimination: The company barred women with young children from working there, but not men in the same situation. If that wasn't discrimination "because of sex," what was? And Marshall liked Phillips. Her outrage at Martin Marietta, at its bald-faced denigration of working mothers, was contagious. "It wasn't just about her; it was about all the other women who were in her position who were thrown aside just because they had children," he explained. Marshall decided he was in. "Let's test the waters," he said.

As Marshall contemplated taking on a behemoth like Martin Marietta, including what would undoubtedly be an army of well-financed defense attorneys — he predicted he was "going to get the kitchen sink thrown" at him — he knew he could use some help. Marshall contacted LDF and a few other big names in the civil rights legal world. To his surprise, though, he couldn't get anyone interested in Phillips's case. At the time, there were few groups to call on devoted specifically to women's rights. The National Organization for Women had been founded just one year earlier, and as New York Timescolumnist Gail Collins would later report, making contact with its leadership was a "little like trying to find the early Christians." Other now-illustrious national women's advocacy organizations — the American Civil Liberties Union's Women's Rights Project, for example, or the National Women's Law Center — simply didn't exist yet.

Nevertheless, convinced that Title VII had been violated and heartened by the EEOC's endorsement, Marshall plowed ahead alone. (His only hope for eventually getting paid rested with Title VII's requirement that if a plaintiff wins, the defendant has to cover her attorney's fees.) On December 12, 1967, he filed a complaint in the U.S. District Court for the Middle District of Florida, seeking an order finding the company in violation of Title VII, directing it to hire Phillips, and requiring it to pay her back wages. The case was assigned to Judge George Young, a recent appointee. Within weeks, it was clear how Phillips's claim was going to fare: In an unusual move, without any prompting from Martin Marietta, Young issued an order that eviscerated Phillips's claim. Declaring that discrimination against women with young children did not qualify as discrimination "because of sex," he deleted that part of Phillips's complaint. Instead, Young ruled, her complaint would proceed as if Phillips had alleged that the company's policy was not to hire any women at all.

That was a case that couldn't be made; Martin Marietta submitted ample evidence to Young that the vast majority of people hired as assembly trainees were women. A few months later, citing that evidence, Young found no evidence of sex discrimination and granted judgment to the company. Although Martin Marietta hadn't denied that it hired men with preschool-age children, Young declared that fact irrelevant. "The responsibilities of men and women with small children are not the same," he opined, and "employers are entitled to recognize these different responsibilities in establishing hiring policies."

To Reese Marshall, Young's dismissive treatment of Phillips's claim — "quick, fast, and in a hurry," as he ruefully described it — was simply "devastating." Yet he was steadfast in his belief that the case had "a good, right feel to it." Unquestionably, there was little legal authority for Marshall to cite; Title VII was so new that the Supreme Court had never had to consider what discrimination "because of sex" meant. Indeed, no other court had ever decided a case like Phillips's. The fact was that Martin Marietta's policy, not to mention Judge Young's rationale for endorsing it, was rooted in the stereotypical notion that women necessarily cared more about motherhood than about their jobs — exactly the kind of bias Title VII was surely meant to outlaw. Marshall resolved to appeal.

"I just felt like we would get a better ear in the appellate court," Marshall said. "Someone is going to see this and understand what we're talking about." Given that it was the Fifth Circuit that would be hearing the case, there was reason to be hopeful; although since that time it has come to be considered one of the most conservative courts in the country, in the late 1960s, the Fifth Circuit was one of the most liberal. Nicknamed the Supreme Court of Dixie, owing to its jurisdiction over a wide swath of former Confederate states — Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas — it had gained notoriety in the years following Brown v. Board of Education as fertile ground for civil rights litigators attacking Jim Crow.

Before filing Phillips's appeal, Marshall tried once more to interest national civil rights groups in the case, only to be rebuffed again; whatever doubts they might have had about using Phillips's claim to test the "because of sex" provision almost certainly had been confirmed by Judge Young's swift dismissal. So Marshall moved forward as the lone counsel. He did manage to secure the endorsement of the EEOC, which filed a brief as an amicus, or friend of the court. (Such submissions from outside interest groups help educate the court about the larger issues raised by the litigation and explain its potential wider impact on people beyond the individual parties involved in the case.)

In addition to having found in Phillips's favor, the EEOC had a larger agenda to promote. In 1965, the year Title VII went into effect, the agency had issued "Guidelines on Discrimination Because of Sex." Though lacking the force of law, the Guidelines informed employers, and judges, of the government's view of what Title VII's "sex" provision meant. One of the Guidelines' directives was that employers not refuse to hire a woman "based on assumptions of the comparative employment characteristics of women in general," such as "the assumption that the turnover rate among women is higher than among men." Another provision stated that employers couldn't base their hiring decisions on "stereotyped characterizations of the sexes," including "that men are less capable of assembling intricate equipment; that women are less capable of aggressive salesmanship."

Most pertinent, perhaps, was the Guidelines' provision about a different subset of women — those wearing wedding rings. "It does not seem to us relevant that [a] rule is not directed against all females, but only against married females," the Guidelines explained. "[S]o long as sex is a factor in the application of the rule, such application involves a discrimination based on sex."


* * *

Although two years had passed since Ida Phillips first applied to Martin Marietta, not much had changed in her life. Case documents filed with the Fifth Circuit include an affidavit attesting to a hardscrabble existence: Phillips was waiting tables at a restaurant called the Derby House, making $120 a month — roughly what she would have made in just one week at Martin Marietta. Phillips's kids helped their mom make ends meet by pitching in at the restaurant after school; Al, then thirteen, helped fill water glasses and wash dishes, as sisters Peggy and Vera had when they were his age, before they graduated to waiting tables. Brother Ronnie became a cook. In her affidavit, Phillips stated she had no savings or checking account.

It was a life very similar to what she'd experienced growing up during the Depression in rural South Carolina. Born Ida Watford, she was a sharecropper's daughter and one of eight children, with a few more who had died at birth or soon after. At fifteen, she met Fred McAlister, a long-distance truck driver and sometime mechanic; they wed after Ida learned she was pregnant. Although that baby died, by the time she was twenty-five, she had had six other children. The family had gone where McAlister found work, first in Bowie, Maryland, and Washington, DC, finally landing in Orlando in 1960.

During her years as Mrs. McAlister, Phillips had always helped to supplement her husband's income. When the kids were little, she sold Avon, Tupperware, and Sarah Coventry jewelry out of their home, and when they were older, she waited tables. In Florida, she worked for the first time in a factory, sorting citrus fruits into crates. Recalling their mother's speedy hands as the fruit came down the conveyor belt, her pay dependent on how many boxes she filled, her kids Peggy, Vera, and Al laughed at the similarity to the famous Lucille Ball candy factory sketch, right down to their mother's auburn hair. Coloring it had been one of their mother's few indulgences, if only out of a drugstore bottle.

The marriage was troubled, though; Fred McAlister had a drinking problem. He and Ida divorced, and she drifted into a relationship with a mechanic named Tom Phillips. It was with him that Phillips had her seventh child — Gracie, named after Ida's mother. Gracie was the one who was preschool age by the time Phillips tried to submit her application to Martin Marietta. Tom Phillips was decent at the beginning, but soon his true colors began to show. He beat Ida and the kids; Al was the only one who could talk him out of his rages. Ida Phillips was trapped in the marriage, terrorized and virtually penniless. To observers like Reese Marshall, Tom Phillips appeared to support Ida's lawsuit against Martin Marietta, but her kids always believed he was in it only because he thought it might yield a big payday. Not until the mid-1970s, when Tom was sent to prison for murdering a friend, would the family be free of him.


* * *

From the beginning of his oral argument before the Fifth Circuit, it was clear to Marshall that all three of the judges on the panel agreed with Judge Young. When they issued their written opinion in May 1969, then, it came as no surprise. They found that Martin Marietta hadn't discriminated "because of sex" because the company didn't exclude all women, just some women:


(Continues...)

Excerpted from Because of Sex by Gillian Thomas. Copyright © 2016 Gillian Thomas. Excerpted by permission of St. Martin's Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents

Contents

Title Page,
Copyright Notice,
Dedication,
Introduction,
1: Women and Children Last Phillips v. Martin Marietta Corporation (1971),
2: Breaking Through the Thin Blue Line Dothard v. Rawlinson (1977),
3: Live Long(er) and Prosper City of Los Angeles Department of Water and Power v. Manhart (1978),
4: A Hostile Environment Meritor Savings Bank, FSB v. Vinson (1986),
5: "A Floor, Not a Ceiling" California Federal Savings & Loan Association v. Guerra (1987),
6: Making "Lady Partner" Price Waterhouse v. Hopkins (1989),
7: Potentially Pregnant International Union, United Auto Workers of America v. Johnson Controls, Inc. (1991),
8: Taking It All the Way to "Sandra Fucking Day O'Connor" Harris v. Forklift Systems, Inc. (1993),
9: Don't Shoot the Messenger Burlington Northern & Santa Fe Railway Company v. White (2006),
10: "Everyone Deserves a Safe Delivery" Young v. United Parcel Service, Inc. (2015),
Epilogue,
Acknowledgments,
Notes,
Index,
About the Author,
Copyright,

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