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and giving them education require in most instances a two-income family or in the great many instances where women are the sole support, require women to work to pay for what they and their children need; but also, the technology has removed from the home many of the tasks that used to be performed there and those tasks are now done outside in society, from the educating of children themselves to the baking of the bread and the weaving of the clothes. Women, along with others, must pay for these things and must have, in effect, a share of the work in society in order so to pay.
In any event, this explains why, according to Government figures, over 25 percent of mothers with children under six are in the labor force today.
Over 85 percent of them work for economic reasons. Over half a million are widowed, divorced, or separated. Their incomes are vitally important to their children perhaps even more important as a portent of the future is the fact that there has been an astronomical increase in the last three decades in the numbers of working mothers. Between 1950 and the most recent compilation of Government statistics, the number of working mothers in the United States nearly doubled. For every mother of children who worked in 1940, 10 mothers are working today, an increase from slightly over 1/2 million to nearly 11 million.
In his pernicious action, Judge Carswell was not only flaunting the Civil Rights Act, designed to end the job discrimination which denied women along with other minority groups equal opportunity in employment, but was specifically defying the policy of this administration to encourage women in poverty, who have children, to work by expanding day-care centers rather than the current medieval welfare system which perpetuates the cycle of poverty from generation to generation. Mothers and children today comprise 80 percent of the welfare load in major cities.
Judge Carswell justified discrimination against such women by a peculiar doctrine of "sex plus” which claimed that discrimination which did not apply to all women but only to women who did not meet special standards-standards not applied to men—was not sex discrimination.
In his dissent, Chief Judge Brown said, “The sex plus rule in this case sows the seed for future discrimination against black workers through making them meet extra standards not imposed on whites.” The "sex plus" doctrine would also penalize I submit the very women who most need jobs.
Chief Judge Brown said:
Even if the "sex plus” rule is not expanded, in its application to mothers of pre-school children it will deal a serious blow to the objectives of Title VII. If the law against sex discrimination means anything it must protect employment opportunities for those groups of women who most need jobs because of economic necessity. Working mothers of pre-schoolers are such a group. Studies show that, as compared to women with older children or not children, these mothers of pre-school children were much more likely to have gone to work because of pressing need ... because of financial necessity and because their husbands are unable to work. Frequently, these women are a key or only source of income for their families. Sixty-eight percent of working women do not have husbands present in the household and two-thirds of these women are raising children in poverty. Moreover, a barrier to jobs for mothers of pre-schoolers tends to harm non-white mothers more than white mothers.
I am not a lawyer but the wording of title VII of the Civil Rights Act so clearly conveys its intention to provide equal job opportunity to all oppressed groups, including women—who earn today in America on the average less than half the earnings of men—and this discrepancy is worse this year than it was in previous years—that only outright sex discrimination or sexism, as we new feminists call it, can explain Judge Carswell's ruling.
I would recall to this committee the exact wording of title VII of the Civil Rights Act of 1964, which provides that:
(a) It shall be an unlawful employment practice for an employer
(1) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
These two provisions, of course, clearly cover the Martin Marietta
At the very least, Judge Carswell's vote in the Martin Marietta case reflects a total blindness to the very real problems women face today, in attempting at long last to use the rights guaranteed in the Constitution to assume full participation in American society, which is their necessity as human beings in the 1970's. The blacks until recently could say, with bitterness, that they were the “invisible men” in America, women have lately realized and with increasing vocal bitterness that they are invisible people in this country. And paradoxically, they are invisible as people precisely to the degree that they are too visible as sex objects-defined and used as sex objects to sell every conceivable product by American business, and yet denied the opportunity to earn a decent salary or hold a decisionmaking position in virtually every business or profession in America today.
This is what sexism is all about; this is the heart of it.
Human rights are indivisible and I and those for whom I speak would oppose equally the appointment to the Supreme Court in 1970 of a racist judge who has been totally blind to the humanity of black men and women since 1948 as to a sexist judge totally blind to the humanity of women in 1969.
That racism and sexism often go hand in hand is a fact often pointed out by social scientists, most notably Gunnar Myrdal, in his famous appendix to the "American Dilemma."
But to countenance outright sexism not only in words by judicial flaunting of the law in an appointee to the Supreme Court in 1970, when American women—not in hundreds or thousands but in the millions—are beginning finally to assert their human rights not only as a moral necessity but because history gives them no alternative, is unconscionable.
I trust that you gentlemen of the committee do not share Judge Carswell's inability to see women as human beings too. I will put, however, this question to you: How would you feel if in the event you were not reelected
Senator BAYH. Would the witness yield for a moment? That is a very dangerous question to put to a panel of U.S. Senators. [Laughter.]
Mrs. FRIEDAN. I am putting it in a sort of rhetorical way, Senator. But I am putting it this way: How would you feel if you were not reelected, and I am putting it that 51 percent of your voters in your States are women and would not feel kindly if you name an outright enemy of women to the Supreme Court, but suppose for whatever reason that you were not reelected and you were then forced to return to the private sector. How would you feel, if when you went back to your State and applied for an executive job of the sort for which you would otherwise be eligible at some company or law firm or university if you were told you were not eligible because you have a child or children, as I assume most of you do?
How would you feel if your sons were told tomorrow, explicitly or implicitly, that they could not get or keep certain jobs if they had children?
Then how do you feel about appointing to the Supreme Court a man who has said your daughters may not hold a job if they have children?
The economic misery and psychological conflicts entailed for untold numbers of American women and their children and husbands by Judge Carswell's denial to women of the protection of a law that was enacted for their benefit are only a faint hint of the harm that would be done in appointing such a sexually backward—and I use that, of course, in the larger sense--judge to the Supreme Court. For during the next decade, I can assure you that the emerging revolution of the no longer quite so silent majority-and that 51 percent who are women are the majority, even if in society, employment, and Government, they are oppressed as a minority—will pose many pressing new problems to our society, which will inevitably come before the courts and indeed will probably preoccupy the Supreme Court of the 1970's as did questions arising
from the civil rights movement of the blacks in the 1960's I can testify almost with certainty that this is so, by the fact that I have been asked, though I am not a lawyer, merely an expert in this field, I suppose, because I am a leader of this emerging revolution, I have been asked recently by very distinguished law schools, Yale Law School, Harvard Law School, New York University Law School, to lecture to classes of law students on the new areas in the law that are going to emerge as a result of this new second phase of the human rights revolution.
In any event, it is already apparent from decisions made by judges in other circuit courts that Judge Carswell is unusually blind in the matter of sex prejudice and that his blindness will make it impossible for him to fairly judge cases of sex prejudice that will surely come up.
Recently courts have begun to outlaw forms of discrimination against women long accepted in society. The Fifth Circuit Court of Appeals--convened as a three-judge court without Judge Carswellon March 4, 1969, in Weeks v. Southern Bell Telephone ruled that weightlifting limitations barring women, but not men, from jobs, were illegal under title VII. The Seventh Circuit Court of Appeals, on September 26, 1969, in Bowe v. Colgate Palmolive Co. ruled that, if retained a weightlifting test must apply to all employees, male and female, and that each individual must be permitted to "bid on and fill
any job to which his or her seniority entitled him or her.” Separate seniority lists for men and women were forbidden.
The Ninth Circuit Court of Appeals in Rosenfeld v. Southern Pacific 293 F. Supp. 1219 (C.D. Cal, 1968) decided in favor of a woman employee by ruling that California's statutes relating to hours and weightlifting were unconstitutional under title VII of the 1964 Civil Rights Act.
In the area of criminal law, the case of Daniel v. Pennsylvania 210 P Super 156, 232 A. 2d 247, 255 (1968), it was decided that women could not receive a punishment of up to 10 years if the punishment a men could receive for the same crime is limited to 4 years in prison.
A list of a few existing instances of discrimination against women, all involving Government action, and all already involving law suits or about to involve law suits, where my organization has been asked to intervene as amicus, law suits maybe going up, I would imagine, to the Supreme Court in the next few years, follows. It goes without saying that most of these examples would arouse the fury of any sensitive human being, much less a human being that you are considering for nomination to the Supreme Court.
1. In New York City, male, but not female, teachers are paid for their time spent on jury duty.
2. In Syracuse, N.Y., male, but not female teachers are paid for athletic coaching
3. In Syracuse, an employer wants to challenge the rule that forbids her to hire female employees at night in violation of New York State restrictive laws.
4. In Pennsylvania, a woman has requested help in obtaining a tax deduction for household help necessary for her to work.
5. In Arizona, a female law professor is fighting a rule that forbids her to be hired by the same university that employs her husband in another department.
6. In California, a wife is challenging a community property law which makes it obligatory for a husband to control their joint property.
7. And, all over the country, the EEOC regulation, which made it illegal to have sex segregated want ads for males and females, have not been followed by most newspapers, and actions are being brought about this.
In other sections, very significant cases that are likely to come up involve women's claims that the right to control of their own reproductive process would involve repeal of existing abortion laws, removing them from the criminal statute.
There is also growing protest that public accommodations which refuse to admit women, are denying women their rights under the Constitution. And the educational institutions which discriminate against women are denying women their equality of opportunity under the Constitution.
The Honorable Shirley Chishold, a national board member and founding member of my organization of NOW, has summed it all up in her statement that she has been more discriminated against as a woman than as a black.
It would show enormous contempt for every woman of this country and contempt for every black American as well as contempt for the
Supreme Court itself if you confirm Judge Carswell's appointment.
I say this in behalf of the right of every woman in America to the full opportunity to life, liberty, and the pursuit of happiness that is guaranteed here under the Constitution, even though that Constitution until now has been interpreted on the Supreme Court as if it were written only for men and not for women. But this country is of, by, and for, its government is of by, and for the people, who are women as well as men. Women are finally beginning to say, in much the same spirit that our revolutionary ancestor said, no taxation without representation; that as citizens of this country, and indeed as a majority of this country, this Constitution must be interpreted to give them equal protection, equal opportunity under the law, equal protection of the rights guaranteed them in the amendments.
We cannot say, I cannot say, that all women in America want equality, as vociferously as some of us are saying now that we want equality, because I know that women, like all oppressed people, have swallowed and plowed into themselves the denigration of women by society that has gone on for generations. Some women have been to much hurt by denigration, by self-denigration, by the lack of the very experiences and education and training need to move in society as equal human beings, to have the confidence that they can so move in a competitive society.
We can say with absolute assurance that while we do not speak for every woman in America, we speak for the right of every woman in America to become all she is capable of becoming-in her own right and/or in partnership with man. And we already know now that we speak not for a few, not for hundreds, not for thousands, but for millions. We know this simply from the resonance, if you will, that our own pitifully small actions have created in society.
I do not believe that you, gentlemen, even if your own duties prevent you from watching television or reading books, can be unaware of this revolution in recent years.
I think also that with the sensing of enormous change in America, you who are in a position to affect the Supreme Court, what it is going to become in the future, you ought to try to grasp the psychology of young women today, even though this psychology may be somewhat different from the psychology of the women who brought you up, or, indeed, the women who are your wives.
I quote from one such young woman, whose name is Vivian Morgan. She said:
The rallying cry of the black civil rights movement has always been: “Give us back our manhood.” What exactly does that mean? Where is black manhood? How has it been taken from blacks? And how can it be retrieved? The answer lies in one word: responsibility; they have been deprived of serious work; therefore, they have been deprived of self-respect; therefore, they have been deprived of manhood. Women have been deprived of exactly the same thing and in every real sense have thus been deprived of womanhood. We have never been taught to expect any development of what is best for ourselves because no one has ever expected anything of us—or for us. Because no one has ever had any intention of turning over any serious work to us. Both we and the blacks lost the ballgame before we ever got up to play. In order to live you've got to have nerve; and we were stripped of our nerve before we began; black is ugly and female is inferior. These are the primary lessons of our experience, and in these ways both blacks and women have been kept, not as functioning rational human beings, but rather as operating objects, but as a human being