In 1961 the Supreme Court, under Chief Justice Earl Warren, unanimously upheld the constitutionality of a jury selection system that discriminated against women on the grounds that “women are at the center of home and family life.” The observation reflected dominant social values at the time, but the Court was unable then to see how such values thwarted the promise of equality for women implicit in the Constitution.
A decade later, the newly established ACLU Women’s Rights Project took the case of Reed v. Reed to the Supreme Court, challenging the automatic preference of men over women as administrators of estates. Congress had already passed statutes such as the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, barring some forms of sex discrimination, and the women’s movement had become recognized as a major political force. In Reed, the Supreme Court saw sex discrimination in a new light, and agreed with the ACLU. For the first time, the Court held that a classification based on sex was unconstitutional, in violation of the equal protection clause.
That legal breakthrough set the stage for the Women’s Rights Project’s systematic effort over the next several years to urge the courts to treat sex discrimination in the same constitutional terms as race discrimination, to attack various forms of sex discrimination permitted by law, and to fashion strategies to overcome practices which, even if they were not explicitly sanctioned by the law, effectively denied true equality to women.
During those years, the ACLU Women’s Rights Project was the major, and sometimes the solitary, national legal arm of the growing movement for gender equality. It was widely recognized as “‘the spokesperson of women’s interests” in the U.S. Supreme Court, and the “premier” representative of women’s rights interests in that forum.(1)
In the two decades since, the Women’s Rights Project has continued to occupy a unique role within the women’s movement. While other groups, including other ACLU units, have played major roles in political organizing, legislative advocacy, and the struggle to preserve the right to choice, the ACLU Women’s Rights Project has been the principal group responsible for systematic legal reform through the courts in the areas of women’s equality and economic rights. It has been the role of the Women’s Rights Project to articulate the principles that persuade courts to utilize both the Constitution and federal statutes to strike down legal barriers to full equality for women.
Examples of such cases include the 1976 case of Craig v. Boren, in which the Supreme Court established the “heightened scrutiny” standard for measuring the constitutionality of sex-based classifications, and Califano v. Goldfarb, in which the Supreme Court struck down discriminatory Social Security regulations, finding that they were the “accidental by-product of (legislators’) traditional way of thinking about females”. By the late 1970s, however, it became clear that, for the foreseeable future, we had accomplished about as much as we could under the equal protection clause and that the last step to strict scrutiny would have to await a more sympathetic Court or an Equal Rights Amendment.
Meanwhile, in 1975, the Project secured its first major grant from the Ford Foundation. This enabled us to develop a significant program to enforce women’s statutory rights, including the rights to equal employment opportunity guaranteed under Title VII and the Equal Pay Act. At that point, most of the case law under Title VII involved race discrimination. The need was to use and adapt this law for women, to enhance their actual economic well-being along with their constitutional rights.
At first, the Project focused on traditionally female occupations in which women were effectively barred from advancement, such as waitresses refused employment in elegant first class restaurants and teachers who were not promoted to principals’ jobs. Then, in the late seventies and early eighties, we decided to concentrate on cases that would have their greatest impact on poor women and women of color. We developed a litigation docket involving non-traditional jobs, such as truck driving, the skilled trades, and production line factory jobs. Such jobs require relatively little education, often provide on-the-job training, and are much higher paying than traditional “women’s jobs.”
We also developed a series of cases challenging the use of sex based actuarial tables to calculate different and lower pensions and insurance benefits for women workers and cases designed to attack the undervaluation of work that has traditionally been performed predominantly by women. These types of cases are complex, requiring the use of statistics and experts, and highly experienced litigators.
Of course, throughout the history of the Women’s Rights Project, we have handled or done back up in many “garden variety” pregnancy discrimination cases. Pregnancy discrimination is, in many ways, at the heart of most employment discrimination against women, and we see it in its many manifestations. Some women are fired shortly after they announce their pregnancy, ostensibly on the basis of performance evaluations that are less than glowing for the first time in their tenure. Or they no longer get choice assignments or a promised promotion. Very often, their job is filled by someone else while they are on a previously agreed upon leave, or it simply “disappears,” only to reappear later with another incumbent. We have also taken cases where men were denied childcare leaves that were readily available to women. Until we eliminate the stereotype that child-rearing is exclusively a women’s role, women’s employment will continue to be seen as marginal and temporary.
At the intersection of non-traditional employment and pregnancy discrimination we found “the new protectionism.” As women began entering formerly all-male preserves, many employers suddenly discovered that the substances and processes that are used in many industries and are known to create health risks for all workers, might also cause reproductive hazards for women. The “solution”? To “protect” women, often with families to support, by excluding all fertile women, regardless of childbearing intent, from these jobs. This “solution” virtually never surfaced in occupations, such as health care and beautician, that present similar risks, but were predominately female and much lower paying. We pioneered in this field by bringing Christman v. American Cyanamid (D. W.Va), the case in which five women submitted to sterilization in order to keep jobs that, shortly thereafter, were eliminated. (For an excellent description of this case, see Backlash: The Undeclared War Against American Women, by Susan Faludi, pp. 437-460.) Rather than clean up the workplace, which by the way, exceeded OSHA’s new standard for acceptable lead levels for adults and for men planning to father a child, the company chose to exclude the women, thus discriminating against both the women and the men. We filed under Title VII because the OSHAct does not permit a private right of action, but we have consistently worked with worker health and safety groups to insure a safe workplace for all workers.
Our work in this area culminated in UAW v. Johnson Controls (1991) in which the Women’s Rights Project played a central role. This case guaranteed women the right to equal employment opportunity without regard to childbearing capacity. It also paved the way for a different and better way to deal with this problem: by providing a workplace which is protective for both sexes. This decision is a necessary if not sufficient step in that direction. Meanwhile, some women may have to make the hard choices. The alternative was no choice.
While engaged in much significant litigation, the Project has not neglected its traditional role as an advocate for women’s rights in the Supreme Court. Our amicus docket reads like a list of the major women’s rights and other Title VII cases decided by the Supreme Court. For example, the Women’s Rights Project authored major amici briefs in Wards Cove Packing Co. v. Atonio (1989); Price-Waterhouse v. Hopkins (1989) (with NOW LDEF) (exclusion of “macho” woman from partnership in accounting firm); Watson v. Fort Worth Bank & Trust (1988) (application of disparate impact theory to subjective selection practices); California Federal Savings & Loan Ass’n v. Guerra (1986) (legality of “maternity” leave); Wimberly v. Labor & Industrial Relations Commission of Missouri (1986) (unemployment insurance and pregnant women); Ohio Civil Rights Commission v. Dayton Christian Schools (1986) (pregnant teacher fired from fundamentalist Christian school on grounds that its religious tenets did not permit mothers of young children to work outside the home); Anderson v. Bessemer City (1984) (“working wife” defense, i.e., defendants could not have intentionally discriminated against plaintiff because they had working wives); U.S. Postal Service v. Aikens (1982) (burden on plaintiff to show basic qualifications for job or most qualified applicant); Arizona Governing Committee v, Norris (1983) (use of sex-based rates to charge women more than men for annuities); County of Washington v. Gunther (1981) (application of Title VII to wage discrimination complaints where the jobs in question are not “equal” within the meaning of the Equal Pay Act); and many others. This does not include briefs that were primarily written by volunteer lawyers under Project supervision or briefs primarily prepared by other ACLU units or other organizations which we joined. (For example, our general legal staff has traditionally been responsible for ACLU briefs in affirmative action cases. The Project, of course, assisted in the writing of those briefs.)
The Project has also authored numerous amici briefs in the circuit courts. These include United States v. Commonwealth of Virginia (4th Cir., appeal pending) (the VMI case, co-authored with the National Women’s Law Center); Wright v. Olin (4th Cir. 1982) (fertile women denied “hazardous” jobs); Hayes v. Shelby Memorial Hosp. (11th Cir. 1984) (pregnant x-ray technician fired in grounds of reproductive hazard); Zuniga v. Kleberg Hosp. (5th Cir. 1982) (same); AFSCME v. State of Washington (9th Cir.1985) (use of pay equity study as evidence of wage discrimination); ANA v. State of Illinois (7th Cir.1986) (same); and others.
For more information, please see as our 10 Year Report (1973-1983) and Annual Reports which are available for each year since 1981. These provide a more detailed description of our work and an idea of the range and scope of our programs in litigation (direct and amicus), public education, and other forms of advocacy.
Every month, you'll receive regular roundups of the most important civil rights and civil liberties developments. Remember: a well-informed citizenry is the best defense against tyranny.