From The Los Angeles Times: http://www.latimes.com/opinion/op-ed/la-oe-0515-thomas-title-vii-evolution-20160515-story.html
By Gillian Thomas
May 16, 2016
he Department of Justice last week threw down the gauntlet in North Carolina, filing a lawsuit alleging that the state violated federal anti-discrimination laws by restricting trans individuals’ access to bathrooms in state government buildings. One of those federal laws, Title VII of the 1964 Civil Rights Act, forbids employment discrimination because of race, color, national origin, religion – and sex. DOJ says that North Carolina has engaged in sex discrimination, because, in DOJ’s view, “sex” includes “gender identity.”
The government’s interpretation of that word — “sex” — has broadened significantly since Title VII’s passage. Indeed, the Equal Employment Opportunity Commission, the federal agency created by Title VII and vested with primary enforcement authority for the statute, initially understood “because of sex” to mean no more than overt disadvantages to women in favor of men, and showed no interest in enforcing the provision at all. It’s taken decades for the legal understanding of sex to arrive at where it is today, and it’s a progression that maps, and mirrors, our cultural understanding of sex as more than just biology.
“Sex” was added to Title VII’s list of protected characteristics at the last minute by Rep. Howard Smith of Virginia, an avowed opponent of the Civil Rights Act. Although Smith was, incongruously, a longtime supporter of the Equal Rights Amendment, his jocular tone during much of the floor debate on the sex amendment suggested that he was less than serious about winning its adoption. (Historians have come to believe that Smith likely was sincere, if only because he feared that an employment rights bill that protected against race but not sex discrimination would place white women at a disadvantage in the workplace.) The amendment ultimately passed, but not without a good deal of bemused commentary from House members — only 12 of whom were women — at the notion that women should stand on equal footing in the workplace.
The unceremonious addition of “sex” to Title VII prompted a dismissive attitude among the EEOC’s leadership. When a reporter at a press conference asked Franklin D. Roosevelt, Jr., the agency’s first Chair, “What about sex?” he had only a joke for an answer. “Don’t get me started,” he said. “I’m all for it.” Another of the agency’s first leaders wrote off the Title VII sex provision as a “fluke” that was “born out of wedlock.”
Not surprisingly, then, although fully one-third of the charges filed with the EEOC in its first year of existence alleged sex discrimination, the agency was slow to articulate what illegal discrimination “because of sex” even meant. It waffled, for instance, on whether to sanction job ads that were separated into “help wanted — male” and “help wanted — female,” or the airline industry’s widespread rules that female flight attendants couldn’t be married, over the age of 30 or pregnant.
But thanks to pressure from feminist lawyers within the EEOC, as well as forces outside it — notably the National Organization for Women, founded in part to protest the agency’s cavalier Title VII enforcement — the agency began to right itself.
In 1968, it ruled that sex-segregated ads violated Title VII, and that flight attendants should not be subject to marriage and age restrictions. In 1972, it updated its “Guidelines on Discrimination Because of Sex” to prohibit pregnancy discrimination and sex-differentiated terms in employer pension plans. In even later versions of the Guidelines, the EEOC disapproved “fetal protection policies” that disqualified women from jobs that involved exposure to dangerous chemicals, declared bias against workers with caregiving responsibilities to be a form of sex discrimination, and adopted a definition of pregnancy discrimination that imposed robust obligations on employers to accommodate pregnant employees’ physical limitations.