Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII's Ban on Sex Discrimination Was an Accident

Abstract

Reading court opinions or academic literature, one is left with a near uniform picture of how Congress came to prohibit sex discrimination in employment: as a joke, offered to sabotage the entire Civil Rights Act of 1964. In the words of one district court: "[T]he late amendment that added 'sex' to one portion of the proposed civil rights law came from a powerful Congressman from Virginia who may have been attempting to derail the proposed law." A sex discrimination hornbook puts it this way: "The amendment adding sex was introduced just two days before approval of Title VII by Representative Howard Smith of Virginia.... [who] was accused by some of wishing to sabotage its passage." Another employment law scholar tells a similar version of the legislative history: "It is difficult to capture in the dry text the mocking condescension with which Congressman Smith of Virginia offered the amendment .... " Several scholars have demonstrated that this story is actually untrue. "Sex" was added to the list of prohibited classifications in Title VII after calculated lobbying from women's groups, and with the support of most female members of the House of Representatives. Despite this documented history, courts and scholars continue to retell the same stock story, stating that the sex provision has no legislative history, and that this absence is explained by the fact that the provision's sponsor was engaged in a parliamentary ploy that happened to become law. Clearly, the stock story has staying power.