take the case for an appeal to the Supreme Court. However, the case is not directly relevant to the question of whether restrictive State laws will be allowed to stand under the bfoq exception, or will fall under the supremacy clause, since the company did not raise a bfoq defense. The issue, as formulated by the court, was whether the company policy constituted discrimination based on sex, not whether such discrimination was allowed under the bfoq exception.

In conclusion, then, it appears that, starting with Rosenfeld, recent cases support a trend toward invalidating restrictive State laws applying to women only. This trend is evidenced by invalidation either of State laws or of company policies that parallel State laws. The relevance of the latter type of case is strengthened by court approached to the bfoq which could readily be applied to invalidate the State laws.

PART VI: CONCLUSION

The analysis above shows that State labor laws applying to women only are discriminatory and harmful, and that they have been rejected by the EEOC and the Federal courts. It should also be pointed out that NOW (National Organization for Women), the most establishment-oriented of the new women's rights groups, is also strongly opposed to these State laws, stating, "NOW believes that State labor standards which are applicable only to women are inconsistent with the concept of equality." NOW, also supports the Equal Rights Amendment. Betty Friedan, the past president of NOW, also had this to say about the new EEOC regulations of August 19, 1969:

99 18

The EEOC finally ruled that equal employment opportunity under the Federal law superseded the so-called State protection laws-which means that we have won all of our major goals reversing the original travesty of Federal enforcement of the civil rights' law on sex discrimination which led to NOW's founding in 1966.10

Some labor unions have also taken a stand against the State laws. In Wisconsin, the first State Women's Conference for the AFL-CIO was held on March 7, 1970. The women delegates passed resolutions in favor of the Equal Rights Amendment and opposing State labor laws for women. They stated:

This Wisconsin State AFL-CIO Women's Conference recognizes that the protective laws for women passed in the early 1900's may well have met the needs of the time, but today serve only to limit opportunity in employment for women and discriminate against both men and women.

We further realize that certain decent minimum standards of treatment for all workers regardless of sex are necessary.

20

As early as May 1967, Counsel for the International Union, UAW, and the International Chemical Workers testified at EEOC Hearings in opposition to the State labor laws. Steven Schlossberg, for the UAW, stated that:

More and more employers have been able to discriminate against women because of anachronistic, so-called "protective" State laws regulating the employment of women. Because of State laws and regulations limiting the weights a woman may lift, or the hours a woman may work, employers have been able to deprive women of jobs, promotions and overtime. Provisions in UAW collective bargaining contracts prohibiting discrimination and regulating seniority are avoided and evaded through employer reliance on these outmoded laws.

It is a plain fact of life that the discrimination against women in the employment market is class discrimination almost as gross and as evil as race discrimination. It cannot be rectified through a faint-hearted approach.

21

David Feller, a distinguished labor attorney, speaking for the International Chemical Workers, found the same patterns of discrimination against women under the cover of State labor laws:

And what is in fact happening as a result of the simultaneous existence of State protective legislation and Title VII is that the impact of the law as it is being administered today (a policy changed since 1967) is to deprive women of job opportunities-not simply not to help them-but actively hurt them."

18 NOW brochure.

19 Friedan, Newsletter to Members of NOW, November 1969, 2.

22

20 Proceeding of Women's Conference, Labor Temple, Wisconsin Rapids, Wisconsin, March 7, 1970, 7-8.

21 Statement of the International Union, UAW to the Equal Employment Opportunity Commission at Public Hearing on May 2, 1967, 4, 9.

22 Transcript of Hearings, EEOC, May 3, 1967, 230-231.

Finally, many States have modified State policy in view of Title VII. Measures have included: outright repeal of laws (6 States); rulings that State laws are superseded by Title VII (7 States); rulings that Title VII prevents prosecution under State laws (2 States); exempting women workers who are subject to the Fair Labor Standards Act from State hours laws (6 States); providing exemptions for women workers who sign special agreements (1); and, extending laws to men (1).23

In conclusion, then, conditions today do not warrant support for State labor laws which discriminate against women on the basis of sex. The EEOC, Federal courts, women's groups, labor unions, and States have all begun to recognize this fact. Therefore, "protective" labor laws for women should no longer furnish any basis for opposition to the Equal Rights Amendment.

Senator Cook. We will now proceed and I will turn over the introduction of the first, our first distinguished witness to my senior member on the committee, the distinguished Senator from Michigan, Senator Hart.

Senator HART. I, Mr. Chairman, came only and at the cost of inconveniencing some witnesses at another subcommittee to welcome the most distinguished lady from Michigan. This record needs no recital of the exceptional career that has been hers. I just want to remind my colleagues on the Judiciary Committee that Mrs. Griffiths served effectively and with distinction in the Michigan House of Representatives, graced the Court of Criminal Jurisdiction in Detroit as its chief judge, is known to all of us as the first woman to have served on the Ways and Means Committee, has been suggested I think over the years more frequently than most people as a very logical appointee to the Supreme Court of the United States. Certainly, Michigan Republicans and Democrats alike are proud of Martha Griffiths.

STATEMENT OF HON. MARTHA W. GRIFFITHS, U.S. REPRESENTATIVE IN CONGRESS FROM THE 17TH DISTRICT OF THE STATE OF MICHIGAN

Mrs. GRIFFITHS. Thank you, Senator. That is very kind of you. Thank you very much, Senator Cook, for your presence here and for your wonderful support. And thank you for permitting me to testify on behalf of this amendment.

I am sure, Senator Cook, that you regret as much as I do the fact that the committee has not had time to hear the representatives from the Republican women, the General Federation of Women's Clubs, the National Association of Women Lawyers, the UAW, the Teamsters, the Steelworkers, the American Federation of Teachers, and many other groups who sought to testify on behalf of this amendment. Nevertheless, I don't want anyone to delay now.

I have listened to as much of this testimony as I could, and I would like to answer some of the arguments to this amendment.

Much has been made of the fact that this amendment would repeal the 40-hour week for women. Scant notice has been paid to the fact that the EEOC has already announced that this law is in conflict with the Civil Rights Act of 1964 and is therefore invalid. The attorneys general and/or the supreme courts of some 19 States have already

Correct as of July 31. 1970. Government Actions Relating to State Protective Laws for Women Since the Enactment of Title VII of the Civil Rights Act, C. East, Citizens' Advisory Council on the Status of Women, Washington, D.C. 20210.

agreed with this. All of the suits now brought have been brought to invalidate the 40-hour week, so that while I agree the equal rights amendment would invalidate the 40-hour week, I submit that the argument is irrelevant. It is already invalidated.

Secondly, one of the union witnesses testifying against the amendment pointed out that her union negotiated a 40-hour week for both men and women, I believe. I congratulate her. Her only problem was that she ignored the fact that this same route is open to all other unions. Hours are negotiable. Ask GM this morning if they believe Leonard Woodcock could enforce a 40-hour workweek for his members, and I am sure you will find that GM will agree that he could. As a matter of fact, you might find that they would be delighted if that were all he was asking.

Permit me further to point out that the law does not apply to the woman but to the employer-that is, no employer can employ a woman more than 40 hours per week and many women working low-paid jobs do work two, three, such jobs. With or without this amendment, the 40-hour workweek in my judgment is over with unless action is taken by State legislatures.

Thank you very much for letting me testify to the equality of women. I would suggest that legislature might make the 40-hour workweek applicable to both men and women in jobs paying only 1,000 or 2,000 more per year than the mean average wage. This would permit unions to negotiate their own, it would protect those in unprotected jobs, and it would leave all others to their own judgment. Secondly, the weight-lifting law. This, too, in my judgment and the EEOC's is invalid under the 1964 Civil Rights Act. It has always been a matter of some amusement to me that a woman who can lug around a squirming 20-pound kid all day can't lift 12 pounds at work. I suggest that all States should model their weight-lifting laws on Georgia's.

From Senator Ervin's questions, I have worried that he believes that this amendment, if passed, would force all women to go to work outside their homes to support their husbands and children. This is nonsense. Who works for money outside of the home and who works in the home is a matter to be decided between the husband and wife with this amendment or without it. This amendment would require only that in those few States remaining which we have laws against the woman paying alimony, that such laws be repealed and that the question of alimony be left to the courts. And I might say on behalf of Senator Hart and myself that Michigan repealed their 124-year-old law this year that kept the woman from paying alimony. And I might say further that you wouldn't have a thousand women in the United States paying alimony if all women could pay alimony. You don't pay alimony unless you have the money.

Senator Cook. And Michigan hasn't fallen into the depths of disaster as a result of this?

Mrs. GRIFFITHS. No; not at all.

Senator Cook. I didn't think so.

Mrs. GRIFFITHS. Senator Ervin has ignored that so far as I know in every State a creditor can proceed against the mother for necessities of life for a child if she can pay. The equal rights amendment will not

disturb that. It will not make her more responsible nor the father less.

Will this amendment make women subject to the draft? The early suffragettes did not believe so and I observe that your most informed witness, Professor Kanowitz, didn't believe it would either. I myself don't believe that in the immediate future they would be drafted because I think we are moving toward a voluntary army. The equal rights amendment would only require that women be permitted to volunteer on the same basis as men, and I assure you that they do not now have such rights. I oppose any amendment to this amendment which would prohibit the drafting of women as exceedingly unrealistic. Generals Eisenhower and Mark Clark testified before a Senate committee in 1948 that in any future major conflict women would be drafted. You would unduly cripple the Nation's option and future generations' good sense by prohibiting it under a constitutional amendment.

However, you would also force women to serve as volunteers. And I assure you now that women as volunteers may be subjected to most if not all of the same hardships as men, but they will never have the same rights or the same pay. And that is why we want the equal rights amendment.

Let the Defense Department alone and don't fasten our dead hands from an era that has passed upon the decisions of any future generations. Don't amend this amendment.

I feel I must answer Professor White of the University of Michigan as reported in the press, and as a graduate of that school I would like to apologize for his statement.

This amendment will not change the law of wills except in those areas where some forgotten group still entails land to the oldest son. If that hadn't been repealed hundreds of years ago, this amendment would repeal it. The amendment would not require that a parent leave his property equally divided among his sons and daughters. It would only require that a State permit him to give it to either or that they not make a law which says that he could give it only to one. And since all States that I know do that, the amendment would have no effect upon wills at all.

His statement concerning the possibility of requiring a State to permit the marriage of homosexuals is ridiculous. Marriage is protected in order to protect the propagation of the race. I will admit that if any State were silly enough to sanction marriage between two men it would have to sanction it between two women.

The thing that most impressed me in your hearing was the fact that the scholars from the prestigious law schools had very obviously never even considered the law as it applies to women, much less the equal rights amendment. And I would like to add an aside. When Phil and I were in Michigan Law School and for a good many years thereafter when a woman sought to enter that law school, and I understand that was generally true of other law schools, she was taken aside by the dean and given a little lecture on how desirable it would be for her to go up to Michigan State and take a couple of courses in home economics in place of law. And I can still hear those arguments in the arguments of Freund. The only witness who had obviously considered the subject was Professor Kanowitz of New Mexico.

Let me say that, in my judgment, whether or not this amendment passes these ancient discriminations against women will be removed, one by one if necessary.

For two generations large parts of this country have cried out against the Supreme Court. Why do you want now to permit the Supreme Court to remedy this wrong? Why don't you send this amendment back to the States and let them correct their laws and then tell us whether or not they want to ratify the amendment.

I agree with Kanowitz-this amendment should and will be in the future redundant, but let us notify the legislatures to act now. To freeze the protective legislation into the amendment could only result in all inequities being saved and new inequities being added, and I warn you that if you do this I shall oppose the amendment. But secondly, your daughters, your granddaughters or your great granddaughters will curse your memory.

I would like to further say that I have received a telegram from the Florida Commission on the Status of Women who have asked that I notify you that that commission supports this amendment, that further the Florida Legislature adopted Senate Memorial 1452 on June 1, 1970, supporting the equal rights amendment. And they sent copies to the President of the United States, the Speaker of the House of Representatives and to Mr. Mansfield of the Senate. They indicate the full support of Florida in any testimony before the Senate Judiciary Committee. Florida has corrected many of their inequities and they would expect to pass, to ratify this amendment immediately. I might also remind you that 10 other States have memorialized this Congress to support this amendment. Eighty-two of you, I believe, have introduced the amendment.

Now, I think the time has come, either we mean what we say or we are just here to make believe. And I think that day has passed. I urge you to pass this amendment to the Senate tomorrow and before this legislative year has ended to send it back to the States for ratification. Thank you.

Senator Cook. Thank you, Congresswoman Griffiths. Frankly, I am more than delighted to have you here to kind of put things in their true perspective. I am going to turn this over to Senator Hart so he can ask you anything that he may wish. I do want you to know that I frankly was so impressed with Professor Kanowitz's effort in his remarks that I put them in the Congressional Record yesterday so that we could notify all of our colleagues that if they really want to get a true legal significance of this amendment that they might read this, and I think it would clear up a lot of problems.

Mrs. GRIFFITHS. Thank you. And I think you are quite right. I think he is the only person who testified who has really contemplated the legal results of this amendment.

Senator Cook. Senator Hart.

Senator HART. Mr. Chairman, now you know why we are proud of Martha Griffiths.

Mrs. GRIFFITHS. Thank you.

Senator HART. I have no questions at all. I hope that all of us on the committee will have an opportunity to read her statement and respond accordingly. I am torn as to whether to tell this story or not, and because I want to tell it, I shall.