Wednesday, July 16, 2014
In the most recent issue of The New Yorker, Louis Menand has this essay on how “sex” got added to the list of protected characteristics in Title VII of the Civil Rights Act of 1964. The standard story: The “sex” amendment was an unsuccessful attempt to defeat the entire bill—a failed poison pill. In contrast, Menand emphasizes how that amendment was partly the result of vigorous efforts by women activists—in particular, Alice Paul of the National Women’s Party—and some female House representatives, especially Michigan Democrat Martha Griffiths.
Menand is openly borrowing here from scholars, including Carl Brauer, “Women Activists, Southern Conservatives, and the Prohibition of Sex Discrimination in Title VII of the 1964 Civil Rights Act, “ Journal of Southern History 49(1) (1983): 37-56, and Jo Freeman, We Will Be Heard: Women’s Struggles for Political Power in the United States (Rowan & Littlefield, 2008) (chapter 12). On the origins and durability of the “failed poison pill” story, see Rachel Osterman, “Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban on Sex Discrimination Was an Accident,” Yale Journal of Law and Feminism 20 (2009): 409-440. In the courts, a fleeting recent reference to this literature appears in Nelson v. James H. Knight DDS, 834 N.W.2d 64, 74 n.8 (Iowa 2013) (Cady, J., concurring specially).