The ‘other’ second wave

When I put together the syllabus for the Second Wave course I decided to focus mainly on the autonomous, radical social movement that emerged from the US New Left around 1968. This is what’s mostly associated with the second wave in public memory, and today’s feminism is indebted to it in many ways.

But there was another side to the feminism of the 1960s and 1970s: campaigning for equal rights using traditional methods like lobbying politicians and taking cases through the law courts. This kind of activism is sometimes labelled ‘liberal’or ‘reformist’ (i.e., not ‘radical’ or ‘revolutionary’), and those labels were sometimes used in disparaging ways by radical activists, who distrusted the institutions of the state, and thought the point of feminist politics was to transform society, not just tinker with its existing structures. One radical slogan of the time was ‘women who want to be equal lack ambition’.

In reality, though, some feminists were involved in both kinds of activism. An example is the African American lawyer and activist Florynce Kennedy, who was a member of NOW, the (‘reformist’) National Organisation for Women, until 1970 (her goal was actually to radicalise it, especially on questions of race and racism), and was also centrally involved in planning the landmark (‘radical’) 1968 protest against the Miss America pageant. flokennedyAs a lawyer she represented radical clients such as the Black Panthers and Valerie Solanas (the author of the SCUM Manifesto, who shot and wounded the artist Andy Warhol), while also participating in ‘reformist’ projects like fighting the ban on abortion in the courts. Though radical by conviction, Kennedy would work within the existing structures where she believed that would advance important political goals.

Sherie Randolph’s recent biography of Kennedy is still on my list of books to read, but one new book I did manage to read during the course was  Gillian Thomas’s Because of Sex: One Law, Ten Cases and Fifty Years that Changed American Women’s Lives at Work–an informative and readable history of the way women and their lawyers used the courts to fight sex discrimination and sexual harassment in the workplace.

because-of-sexThe ‘one law’ of the title is the 1964 Civil Rights Act—more specifically, Title VII of the Act, relating to equal opportunities in employment. This law was not originally intended to cover sex discrimination. As drafted, Title VII prohibited discrimination on the grounds of race, colour, religion and national origin. But then Howard Smith, an 80-year old Congressman from Virginia, proposed an amendment adding sex to the list. Smith was a racist and a die-hard supporter of segregation, who probably hoped to prevent the Act from passing (there’s still some debate on what his exact motivations were). In the event, though, his amendment itself was passed by 168 votes to 133. Later that year, when the Civil Rights Act was signed into law, it contained a provision banning employment discrimination ‘because of sex’. Because of Sex tells the story of ten landmark cases which began with a woman taking action against an employer, and ended up in the US Supreme Court.

In my last post I cited a recent piece which claimed that second-wave feminism was all about ‘careers for mostly white women’. If there’s one thing this book makes clear, it’s that white middle class professionals weren’t the only women who cared about, or benefited from, the struggle for equal rights at work. Most of the cases Thomas includes were fought by working class women, Black and white: factory workers, van and forklift truck drivers, a bank clerk and a woman who wanted to be a prison guard. They weren’t trying to break through the glass ceiling, but taking action on such basic problems as sexual harassment, unequal pension rights, the sacking or demotion of pregnant women, and recruitment practices which kept the best-paid jobs for men.

The first case in the book, Ida Phillips vs. the Martin Marietta Corporation, involved a 32-year old white waitress who in 1966 was refused the opportunity even to apply for a better-paid position at a local factory because she had a pre-school child. A man with a pre-school child would have been eligible, so this appeared to be sex discrimination. The agency charged with enforcing Title VII investigated and decided in Phillips’s favour, but it could not get the company to settle the dispute by hiring her, so it advised her to file a lawsuit.

Phillips went to a young Black lawyer, Reese Marshall, reasoning that ‘[African Americans] knew more about civil rights’. They lost the case: the judge held that Phillips hadn’t been discriminated against simply ‘because of sex’, but because she was also a mother. Marshall and Phillips also lost on appeal, but one dissenting judge pointed out that if this ‘sex plus’ argument were allowed to stand, the entire Civil Rights Act could fall. The judgment against Phillips created a general loophole: all an employer had to do if he wanted to deny someone a job was add some other characteristic to the legally protected one.

This argument drew the attention of Black civil rights organisations, partly because the loophole would permit racial as well as sexual discrimination, but also because the specific point at issue—whether mothers could be barred from employment—particularly affected Black women, who were more likely than their white counterparts to remain in the workforce while their children were young. Though Ida Phillips herself was white, it was a Black organisation, the NAACP, that applied for her case to be heard by the Supreme Court. (She finally won it in 1971.)

Some of the other cases covered in the book are mind-boggling reminders of what was taken for granted in the fairly recent past. One of them made history by overturning previous judgments on sexual harassment, which had held that employers could not be expected to regulate sexual behaviour in the workplace. Why? Because, apparently,

The attraction of males to females and females to males is a natural sex phenomenon and it is probable that this attraction plays at least a subtle part in most personnel decisions.

There’s also the story of one white professional woman, Ann Hopkins, who was denied a partnership at the accounting firm Price-Waterhouse in 1982. Although she had brought in more business than any of the other 87 candidates, her colleagues considered her ‘aggressive’ and ‘unfeminine’. The Supreme Court considered expert evidence on sex-stereotyping, and concluded, in the words of one Justice, that

An employer who objects to women being aggressive but whose positions require this trait places women in an intolerable and impermissible catch-22.

Those words were written in 1989, and nearly 30 years later many employers are still taking no notice—an illustration, perhaps, of the radicals’ point that reforming the law is not the same as changing the world. Nevertheless, I ended up thinking that the reformists deserve more credit than they often get in chronicles of the second wave: a lot of women have a lot to thank them for. And if the new administration in the US does what it’s threatening to do to women’s rights, the current generation of feminists may also have something to learn from them. When your rights are under attack, equality no longer looks like such an unambitious goal.

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