This file was prepared for electronic distribution by the inforM staff. Questions or comments should be directed to inform-editor@umail.umd.edu. STATEMENT ON THE EQUAL RIGHTS AMENDMENT United States Commission on Civil Rights Clearinghouse Publication 56 December 1978 2. The Need for the Equal Rights Amendment Discrimination on the basis of sex continues to be a major national problem almost years after Congress proposed the Equal Rights Amendment. A recent Civil Rights Commission review of statistical measurements of equality provides clear documentation of continuing and serious problems of sex-based inequality in employment, education, and housing. -1 These inequities exist despite the passage of Federal and State legislation to combat certain forms of sex discrimination. While this statement is not an exhaustive survey of all the areas in which change is needed, the examples discussed dispel the myth that women already have equality under law. In Federal statutes alone, the Civil Rights Commission has identified over 800 sections of the U.S. Code containing examples of substantive sex bias or sex-based terminology that are inconsistent with a national commitment to equal rights, responsibilities, and opportunities. -2 "The cumulative effect," as Civil Rights Commissioner Freeman has pointed out, "is to assign women, solely on the basis of their sex, to a subordinate or dependent role." -3 Current Status of Women Family Law A woman's rights during marriage, as well as after--whether the marriage ends as a result of death or divorce--have traditionally been those of a second-class citizen. Many State laws still reflect their roots in the English common law view of the married woman as the property of her husband. -4 Some of the more oppressive aspects of this discrimination have been removed over the past century, so that a married woman can now own property, enter into contracts, be granted custody of her children, and, in most cases, keep her own earnings. -5 However, laws covering marriage continue to deny women equal rights. -6 Marital property laws illustrate the persistence of sex bias against women. In Georgia, for example, a married couple's home belongs only to the husband, even when it has been paid for by the wife. -7 In other States, the husband is given the right to manage and control marital property without the wife's consent, again, even if it was purchased with the wife's earnings. -8 In Wisconsin, the earnings of a married woman "accruing from labor performed for her husband, or in his employ, or payable by him" are not considered her separate property and are subject to her husband's control. -9 The same bias is evident in laws that deny a woman the right to sue a third party who has injured her husband and thereby deprived her of his services. A husband, similarly deprived, can sue. -10 The married woman who chooses to be a full-time homemaker has the least legal and economic protection of all, since many States do not recognize her labor as having economic value. -11 This is repugnant to the view of marriage as a partnership between the husband and the wife, with both performing different but equally important roles, each having economic significance. -12 The lack of economic value accorded a woman's contributions to a marriage is demonstrated in the case of a Nebraska farm couple who worked the land together for 33 years. -13 When the husband died in 1974, his wife learned that in the Federal Government's eyes the farm belonged entirely to him. Unless she could prove that she helped to pay for its purchase or improvement, she would be liable for a $25,000 inheritance tax. Her years of work, even the joint title, was no proof. Had the wife died first, her husband would have had to pay no tax. -14 In most States, when a marriage ends, distribution of the marital property follows a similar rule. Until a recent successful challenge under the Pennsylvania State ERA, a woman in that State was faced with the legal presumption that all the household articles acquired during the marriage--such as the stove, the TV, and even her jewelry-- belonged to her husband, unless she could prove that she paid for them. -15 While States like New York do not have such an explicit presumption, the result is often the same because one's legal rights to property generally are determined by proof of actual economic contribution or of receipt as gift. Most homemakers who earn no wages cannot establish such proof. -16 Sex-based roles and presumptions also affect a married woman's ability to get credit. -17 This is true even under the Federal Equal Credit Opportunity Act (enacted to make credit available without discrimination on the basis of sex or marital status), since creditors may consider State marital property laws in determining creditworthiness. -18 Similar hardships face the homemaker under the social security program. Since she has no independent entitlement to benefits, if she becomes disabled, she and her dependents have no right to social security, even though her services are lost to her family. -19 Because the program does not recognize the economic value of her contribution to the family, she will not receive benefits under her husband's coverage if she is widowed before the age of 50 unless she has minor or disabled children in her care. This is true even if she is disabled and cannot work. -20 The only economic "right" the married woman has traditionally had is the theoretical "right to support during a marriage." The significance of this "right" and the potential effect of the ERA on it have been primary targets of distortion by ERA opponents trying to argue that the amendment will strip away women's rights. In fact, the legal duty of a husband to support his wife is largely unenforceable. It is little more than myth, since courts will not interfere in an ongoing marriage to ensure adequate support either for the wife or for the children. -21 Laws governing support and alimony during separation and after divorce are similarly illusory in the benefits they appear to confer upon women. -22 The reality is that only 14 percent of divorced wives were awarded alimony in 1975 and that fewer than half were able to collect their payments regularly. -23 Similar enforcement problems exist for collecting child support. A study tracing child support payments over 10 years showed that 62 percent of male parents failed to comply fully with court-ordered child support payments in the first year after the order, and 42 percent did not make even a single payment. By the 10th year, 79 percent were making no payments at all. -24 Support laws are so poorly enforced that most separated and divorced women have no choice but to work outside the home or turn to welfare. A study in Jefferson County, Alabama, revealed that the average amount of support ordered for a woman and two children was $80 per month, substantially less than the amount she would receive under welfare. -25 In Rhode Island, because support payments are so erratic, they are not counted as income when applying for credit. - 26 As discussed in chapter 3, women in traditional homemaker roles who are so poorly protected by current laws have much to gain under the Equal Rights Amendment. The amendment would prohibit explicit sex-based statutes and common law doctrines associated with family law. Even laws neutral on their face, but that affect one sex more harshly than the other, would have to be reexamined. This does not mean, however, that the ERA will alter family structure. It will not force women out of the home or downgrade the roles of mother and homemaker. "Indeed, it would give new dignity to these important roles. By confirming equality under the law, by upholding woman's right to choose her place in society, the Equal Rights Amendment can only enhance the status of traditional women's occupations. For these would become positions accepted by women as equals, not roles imposed on them as inferiors...." -27 Women in the Labor Force Women who work outside the home continue to be disadvantaged by sex-role stereotypes and gender lines that affect employment opportunities and achievements. These women, too, stand to gain under the Equal Rights Amendment. Despite recent legislative reform and efforts to enforce Federal and State antidiscrimination laws, sex bias in employment persists. While the labor market has provided increased job opportunities for women in recent years, most of the openings have been in clerical and service areas traditionally dominated by women. Indeed, occupational segregation by sex increased substantially between 1970 and 1976. -28 Not only are the jobs held by women different from those held by men, but the evidence is that they are valued less by society. -29 In professional and technical fields, women are overrepresented in jobs that are lower on the career ladder than men in the same industries: women are teachers more often than principals, bookkeepers more often than comptrollers. -30 Even within a traditional woman's field, clerical occupations, women are more likely to be employed in lower paying positions as typists, stenographers, secretaries, and file clerks, while men tend to be employed as administrative assistants, a higher paying clerical occupation. -31 In general, the jobs in which women are concentrated pay lower salaries than those paid in traditionally male-dominated positions, even when these positions involve equivalent skill, effort, and responsibility. -32 Even when adjustments are made for education and occupation, women earn less than men. In 1976 a woman who attended 4 years of college was earning about as much as a man with 8 years of elementary school education. -33 On the average, in 1976 women clerical workers earned $4,200 less than male clerical workers, and saleswomen earned $6,900 less than salesmen. -34 In public employment, the median income for women working full time was $9,215 in 1975, while the median income for men was $ 13,118. -35 Although women of all races consistently earn less than majority- group men, the earnings gap between minority women and majority men is even more pronounced. In 1975, American Indian, Alaskan Native, black, Mexican American, and Puerto Rican women averaged less than $5.000 a year in earnings, not even half of the average $11,427 earnings of majority men. -36 These differences persisted even when occupation, age, education, State of residence, and time worked were taken into account. Indeed, the earnings gap between men and women in public and private employment has increased . In 1956, before the enactment of Federal equal employment legislation, women's average earnings were 63 percent of men's. Twenty years later, they had fallen to 60 percent of men's earnings. -37 For minority women, the earnings gap is greater still. -38 In 1963 Congress began the task of improving the legal status of working women with passage of the Equal Pay Act, which, as amended, broadly prohibits sex discrimination in wages paid in public and private employment. -39 A ban on sex discrimination was included in Title VII of the Civil Rights Act of 1964 and has been expanded to cover workers in public as well as private employment. -40 But the task of reforming the law is unfinished at both the Federal -41 and State levels. Some employees, such as those who work for the Congress, still are not covered by laws prohibiting sex and other forms of discrimination in employment. -42 Express sex bias also persists in our Nation's laws. For example, a 17-year-old girl who wants to work for a contractor with the Federal Government cannot, but a 17-year-old boy can. -43 Although such a restriction may have been intended as "protective" legislation, surely if working conditions are unsound for young women, they are unsound for young men as well and should be corrected. Other laws and government programs restrict job opportunities for women in ways that are less direct, but no less damaging. For example, the automatic preference given veterans in public employment is a program that few women can take advantage of, owing primarily to the history of sex discrimination that has restricted their opportunities in the military. -44 In this context, bias clearly breeds bias. This is apparent in Federal civil service test results. Women are 41 percent of those who pass the college-level test, but only 27 percent of those who are hired. Veterans, on the other hand, are only 20 percent of those who pass the test, but 34 percent of those who are hired. -45 Finally, recent court decisions have narrowed the application of equal opportunity laws such as Title VII. For example, the Supreme Court has exempted certain discriminatory seniority systems from Title VII, -46 has allowed an employee's "womanhood" to disqualify her from a job, -47 and has upheld the denial of disability benefits and accrued sick pay to employees disabled by pregnancy. - 48 Lower courts, moreover, are largely failing to apply Title VII standards at all to academic employment. -49 In general, courts have not brought to sex discrimination cases "those judicial virtues of detachment, reflection and critical analysis which have served them so well with respect to other sensitive social issues. . . . 'Sexism'...is as easily discernible in contemporary judicial opinions as racism ever was." -50 The Equal Rights Amendment will be an important legal and symbolic weapon to counter sex-based discrimination in employment, particularly meaningful to minority women, who participate in the labor force at a higher rate than majority women. -51 It will help to complete the Federal and State efforts to erase the sex bias in laws that have limited employment opportunities only for women. -52 It will, at a minimum, give government workers already protected against job related sex discrimination under Federal civil rights statutes a stricter standard for the review of their claims -53 and extend such protection to congressional workers who are not already covered. In addition, the ERA will provide an impetus for more effective and vigilant enforcement of antidiscrimination laws. Finally, the courts will be governed by the provisions of the Equal Rights Amendment as they decide cases raising problems of sex-based discrimination. Criminal Law Criminal law is another area in which women and men are treated differently because of their sex. This treatment has most often been disadvantageous to women, as both victims and offenders. -54 In some jurisdictions, definitions of criminal behavior and legal defenses reflect sex-based notions. In Alabama, for example, if a husband finds his wife in the act of adultery and immediately kills her, he is not guilty of murder, but of the lesser crime of manslaughter. -55 However, the same defense is not available to a wife. This view that husbands have a special prerogative when it comes to their wives also is reflected in the laws of those States that do not recognize a charge of forcible rape as a crime when committed by a husband against his wife, regardless of the circumstances and degree of coercion involved. -56 Explicit sex lines similarly are found in prostitution laws. Traditionally, prostitution was defined as a "woman's act," with no attempt to penalize the men who paid or were paid for it. -57 Although many jurisdictions have revised these laws to cover men as well as women, "less than half explicitly penalize the patrons of prostitution, and many of those that do impose less stringent penalties against patrons than prostitutes." -58 Sex-based definitions of criminal behavior also permeate the juvenile justice system, which often subjects girls and boys to differing definitions of delinquent behavior and to different sentences. In general, more girls are detained for "status" offenses such as promiscuity or truancy, while boys are arrested for delinquent acts such as theft. -59 On the average, girls are institutionalized for less serious conduct than boys and for longer periods of time. -60 Sentencing and parole statutes and practices further illustrate the persistent sex-based discrimination in criminal law. In some States, laws still mandate indeterminate sentences for women, while men receive set minimum and maximum terms. -61 This disparate treatment stems from the sex-based presumption that "women, including women offenders, are more malleable than men and thus more amenable to reform and rehabilitation. In practice, this means that a woman offender remains in custody until the prison administration finds she has been 'corrected' while a man who has been imprisoned 'does time' for some set period...." -62 The result may be that the female offender is incarcerated far longer or far shorter than a man convicted of the same offense; in either case, the comparative time in prison may bear no relationship either to the crime or to rehabilitation. Once in prison, there is further evidence of different treatment for male and female offenders. Women generally receive far less vocation training or job placement assistance, and the training that is offered in Women's prisons tends to be sex stereotyped, tracking Women into lower paying jobs. -63 Commenting on the sex bias throughout the Criminal justice system, Commissioner Freeman has noted its particular bearing on minority women. "Given the conditions in which many minority people live and how these conditions breed crime, and given the greater likelihood of arrest and conviction of minority people, the double jeopardy in which minority women are placed by actions which discriminate on the basis of sex is apparent."' -64 The Equal Rights Amendment would require neutralizing the distinctions that penalize perpetrators and/or protect victims of crime differently depending on their sex. This does not mean that any criminals will go unpunished, but rather that men and women will be judged by the acts they commit, not by their sex. Education In describing the need for the Equal Rights Amendment in 1972, congressional proponents pointed to the field of education as evidence of the persistent pattern of sex discrimination. -65 Despite Federal and State legislation prohibiting such discrimination in educational programs and institutions, many discriminatory patterns persist. Education is an important route for personal advancement; therefore, its opportunities must be open to our daughters as well as to our sons. Yet, in elementary and secondary schools, girls still are steered away from mathematics, science, and the training needed for the better paying fields currently dominated by men. In the 3 years from 1972 to 1975, the proportion of girls in technical education rose less than I percentage point, from 10 percent to 11 percent. The increase was about the same--from 12 percent to 13 percent--in trades and industrial occupations. -66 In a recent case, when a ninth-grade girl who had won awards in geometry and science wanted to go to a public high school that offered advanced courses and superior facilities in these fields and for which she was qualified by all objective standards, she was turned down because the school was for boys only. -67 Susan Vorchheimer took her case all the way to the Supreme Court, where she was turned down again. -68 The Court has not yet recognized such sex-based segregation as a form of sex discrimination nor is it likely to do so while the ERA is pending. -69 Inequality is widespread in school sports, a traditional training ground for leadership and a route to higher education through athletic scholarships. For every one girl playing high school sports, schools are still providing teams and equipment that advantage two-and-a-half times as many boys. -70 At the college level, budgets for women's sports are still only 10 to 15 percent of men's. -71 Women are less likely than men to complete 4 or more years of college. When minority women are compared with white men, the disparity is particularly pronounced. -72 College-level discrimination is perhaps most severe among the ranks of faculty and college administrators. Women are only 25 percent of full-time faculty; they are clustered at the lower professional ranks, and their status has been described as "sliding slowly downhill." -73 College administration is still a male-dominated field; as of May 1977 only about I percent of all presidents of 4- year colleges and public and private universities were women. -74 Federal legislation to address these problems includes Title IX of the 1972 Education Amendments, which broadly prohibits sex-based discrimination in education programs financed by the Federal Government. -75 However, two extensive reviews of Title IX show it has failed to have much effect. -76 The outcome of the July 1978 deadline for compliance by secondary and postsecondary schools with the athletics provisions of the regulations remains to be seen. The Department of Health, Education, and Welfare (the Federal agency chiefly responsible for Title IX enforcement) took 3 years to issue the regulations necessary to enforce Title IX, and other agencies with enforcement responsibilities still have no regulations at all more than 6 years after Title IX became law. -77 Even after HEW's delayed response, a court order was necessary to trigger even minimal administrative enforcement of this statute.-78 The administrative enforcement process itself has failed to result in clear and consistent rulings; has included withdrawal of rulings when they became the center of controversy; and in 6 years has reached a final decision in less than 500 complaints of sex discrimination of a total of 1,400 pending--an average of less than one complaint per investigator per year. -79 Indeed, for the 10 months preceding June 1977, HEW stopped making decisions on Title IX almost completely and did not even answer mail dealing with the act. -80 Individuals turning to the courts for relief under Title IX have met with further resistance. In fact, their right to go to court at all under Title IX has been questioned. -81 The Federal Equal Rights Amendment will provide an independent basis with which to challenge sex bias in education programs that directly or substantially involve government action. Unlike Title IX, Federal funding will not be required to trigger its application. The right of a student or teacher to go to court when faced with sex-based discrimination will be clear. Ratification of the ERA can be expected to prompt more effective enforcement of antidiscrimination laws concerning education. It will be a clear mandate of the highest order that sex bias is not acceptable in our Nation's schools. Moreover, the symbolic effect of the Equal Rights Amendment on our children's education cannot be overestimated. It will assure that the study of the Constitution finally will include the principle that women and men are equal before the law. Existing Constitutional Guarantees The 5th and 14th amendments have never been interpreted to prohibit all discrimination against women as a class. Indeed, before 1971, even the sharpest sex-based classifications survived constitutional review, usually justified as "preferential" to women. Gender lines upheld by the Supreme Court have included those that kept women off juries, -82 barred them from occupations ranging from attorney -83 to bartender, -84 and before the 19th amendment, denied them the right to vote. -85 The Court signaled a new direction in Reed v. Reed, a 1971 decision that struck down an Idaho statute which gave men preference over women in administering the estates of deceased relatives. -86 Following Reed, the Court in Frontiero v. Richardson -87 declared unconstitutional a statute that gave automatic fringe benefits to wives of men in the uniformed services, while requiring husbands of servicewomen to prove dependence. Despite this new willingness to reject sex-biased laws, the Court consistently has stopped short of declaring sex a "suspect" classification, as it has done with race and national origin. The explanation for this hesitancy offered by Justice Powell in Frontiero underscores the importance of ratification of the ERA: There is another, and I find compelling, reason for deferring a general categorizing of sex classification as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. -88 Supreme Court rulings in sex discrimination cases following Frontiero have been uneven. The Court has upheld sex-based classifications against equal protection challenges in some cases, -89 while invalidating them in others. -90 In one case challenging sex-segregated schools (Vorchheimer v. School District of Philadelphia), it was unable to reach any decision at all. -91 The effect in Vorchheimer was to let stand the lower court's opinion allowing sex-segregated schools. -92 In the recent Bakke decision, Justice Powell, writing the deciding opinion, explained why the Court "has never viewed [gender-based classifications] as inherently suspect or comparable to racial or ethnic classifications for the purpose of equal-protection analysis." Discrimination against women, Justice Powell states in Bakke, is not "inherently odious" when compared to the "lengthy and tragic history" of racial bias. -93 Such a comparison of victims of discrimination surely is neither required nor appropriate, and Justice Powell himself recognizes elsewhere in his Bakke opinion that "the kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within judicial competence...." -94 Moreover, Justice Powell's summary of the Supreme Court's view of sex-based classifications is further evidence that the Court has failed to recognize and understand the history and invidious nature of sex discrimination in this country. The Court's record in the 7 years since Reed has included some remarkable gains. But as Columbia law professor Ruth Ginsburg has commented: "the 1970's break with tradition is hardly clear and clean. The Court's performance is characterized by vacillation, 5-4 decisions and a tendency to shy away from doctrinal development." - 95 Indeed, the unsettled issue of the ERA itself seems to be causing the Court to move less forcefully in striking down gender-based discrimination. Ratification of the Equal Rights Amendment will set a standard for review of sex discrimination claims that clearly goes beyond current interpretations of the 5th and 14th amendments in such cases. The ERA standard would prohibit sex-based classifications, except where the constitutional right to privacy or physical characteristics unique to one sex are concerned.93 The amendment will provide a firm root for the doctrine of equal protection for women and men under the law. The application of this principle of equality is discussed in chapter 3. NOTES 1. U.S. Commission on Civil Roghts, Social Indicators of Equality for Minorities and Women (1978) (hereinafter cited as Social Indicators). 2. U.S. Commission on Civil Rights. Sex Bias in the U.S. Code (1977) (hereinafter cited as Sex-Bias in the U.S. Code). 3. Freeman, testimony Before Subcommittee on Civil and Constitutional Rights of House Judiciary Committee (May 19, 1978). 4. See, Crozier. Marital Support, 15 Boston Univ. 1.. Rev. 28 (1935); W. Blackstone. Commentaries on the Laws of England 442. 5. See, e.g., Ill. Ann. Stat. ch. 68, 6, 9 (Smith-Hurd 1959); Me. Rev. Stat. Tit. 19, 161-63 (West 1965). 6. See generally, B. Brown, A. Freedman, H. Katz, A. Price, Women's Rights and the Law: The Impact of the ERA on State Laws 97-202 (1977). 7. L. McGough, The Legal Status of Homemakers Georgia (Nat'l Comm'n on the Observance of IWY, 1977). 8. Louisiana law describes the husband as lhe "head and master" of the community property and grants him the right to full management and control. La. Stat. Ann. Civ. Code Art. 2404 (West 1971). The constitutionality of lhe "head and master' law was upheld by the Louisiana Supreme Court. Corpus Christi Parish Credit Union v. Martin, 358 S.2d 295 (1978), cert. denied, 47 U.S.L.W. 3246 (1978). The legislature recently has amended this law, but the changes are not effective until 1980. La. H. Bill 1569 (enacted on July 12, 1978). Male management principles also survive in two common law property States. D'Ercole v. D'Ercole, 407 F. Supp. 1377, 1380 (D. Mass. 1976); Rauchfuss v. Rauchfuss, 234 S.E.2d 423 (N.C. App. 1977). See also, C. Slaughter, The Legal Status of Homemakers in Mississippi (Nat'l Comm'n on the Observance of IWY, 1977). 9. Wisc. Stat. Ann. 246.05 (1975). 10. See, e.g., Bates v. Donnafield, 481 P. 2d, 347 (Wyo. 1971) See generally, Brown et al., Women's Rights and the Law, supra. at 118. 11. Real Women, Real Lives--Marriage, Divorce, Widowhood 17-19 (Wisc. Gov. Comm'n on the Status of Women, 1978) (hereinafter cited as Real Women, Real Lives). 12. See, e.g., Report of the President's Commission on the Status of Women 47 (1963). Of course, not all homemakers are women, and sometimes the laws that disadvantage homemakers deny fair treatment to men. 13. See More Perfeet Union, supra, at 13-14. 14. For a discussion of Federal inheritance and gift taxes imposed on property transfers between spouses, see, e.g., S. Cunningham, The Legal Status of Homemakers in Nebraska 13 (Nat'l Comm'n on the Observance of IWY, 1977). Changes in Federal tax laws in 1976 and 1978 may have eased the burden on the Nebraska woman described in the text, but did not eliminate the unequal treatment of homemakers and their wage-earning spouses. Similar inequities sometimes result under State tax laws. See, e.g., Ore. Rev. Stat. 118.010 (2)(a)(1974); Rhode Island Gen. L. Ann. 4422--7 (6). 15. DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975). See discussion infra, ch. 3, "Domestic Relations." 16. See, e.g., J. Goodman, Legal Status of Homemakers in New York 16 (Nat'l Comm'n on the Observance of IWY, 1977). See Generally, A. Bingman, "The Impact of the ERA on Marital Economics," Impact ERA: Limitations and Possibilities 116-25 (ed. Calif. Comm'n on the Status of Women, 1976). 17. Id. at 118. 18. 15 U.S.C. 1691d(b)(Supp. 1978); 12 C.F.R. 202.5 (1) (1977). 19. See Department of Health, Education, and Welfare, Report of the HEW Task Force on the Treatment of Women under Soeial Security (1978). See also, Sex Bias in the U.S. Code, supra, at 36 (1977). Women who are wage earners also are disadvantaged in several ways under the social security program. 20. 42 U.S.C. 402(b) and (e)(1974) as amended (1978 supp.). 21. See, e.g, McGuire v. McGuire, 59 N.W.2d 336 (Neb. 1953); Commonwealth v. George, 358 Pa. 22. Real Women, Real Lives, supra, at 43-45. 23. More Perfect Union, supra, at 16. 24. L. Weitzman, Legal Regulation of Marriage. Tradition and Change, 62 Cal. L. Rev. 1169, 1195 (1974). 25. J. Crittendon. The Legal Status of Homemakers in Alabama 11 (Nat'l Comm'n on the Observance of IWY, 1977). 26. Sousa and Tracey, The Legal Status of Homemakers in Rhode Island 17 (Nat'l Comm'n on the Observance of IWY. 1977). In some instances, this practice nay be successfully challenged under the Equal Credit Opportunity Act, see Reg. B, 12 C.F.R. 202.6(b)(S)(March 1977). 27. Rep. Florence Dwyer, 117 Cong. Rec. 35319 (1971). 28. Social Indicators, supra, at 39 45. For example, a higher proportion of employed women were clerical or service workers in 1970 than in 1960. U.S. Department of Commerce, A Statistical Portrait of Women in the U.S. at table 8-1 (1976). 29. Social Indicators, supra, at 45. 30. Women's Equity Action League, "Women and Work: The Unequal Paycheck," 7 WEAL Washington Report 6 (April 1978). See generally, U.S. Department of Labor, 1975 Handbook on Women Workers 88-92 (1975). 31. U.S., Commission on Civil Rights, Women and Poverty 7 (1974). 32. See, e.g., U.S. Department of Labor, Women and Work 1-7 ( 1977). 33. U.S., Bureau of Census, Income and Poverty Statistics of Families and Persons in the United States 1976 at table 7 (P-60 No. 107, Advance Report). 34. U.S., Department of Labor, U.S. Working Women. A Databook 34 (table 36) (1977) (hereinafter cited as U.S. Working Women). 35. U.S., Bureau of the Census, Money Income in 1975 of Families and Persons in the U.S., table 55 (Current Population Reports Series, P-60 No. 105). 36. Social Indicators, supra, at 54. 37. Compare U.S. Department of Labor, 1975 Handbook, supra, at 131 with U.S. Commission on Civil Rights, The State of Civil Rights 2 (1977). 38. See, U.S. Working Women, supra, at table 53. See also G. Borjas, Discrimination in HEW: Is the Doctor Sick or Are the Patients Healthy? (unpublished paper, Center for the Study of the Economy and the State. Chicago, Ill., 1978), which showed white males employed in one Federal agency earned about 23 percent more than white females in 1977 and 31 percent more than black females 39. 29 U.S.C. 206(d) (1974). 40. 42 U.S.C. 2000e--20003-16 (1974). Some State legislatures also have enacted broad fair employment practices laws. 41. The U.S. Commission on Civil Rights has reported elsewhere on the persistent enforcement prohlems with respect to Federal equal employment laws. See, e.g., The Federal Civil Rights Enforcement Effort--1977, To Eliminate Employment Discrimination: A Sequel (1977). 42. Employers of fewer than 15 employees also are not covered by Title VII. 42 U.S.C. 20003e(b) (1974). 43. 41 U.S.C. 35: see also, 30 U.S.C. 187, which flatly prohibits hiring women to work in certain mineral mines on federally-owned lands. For a review of State protective labor laws, see Brown et al., Women's Rights and the Law, supra, at table 6.1. 44. For a review of sex discriminatory provisions regarding the armed forces, see Sex Bias in the U.S. Code, supra, at 19-33; ACLU, "Women and the Military," Notes from the Women's Rights Project 6 (1977); veterans preference programs exist at both the Federal and State levels. 45. The White House, Proposed Modification of Veteran's Preference Fact Sheet 2 (1978). The result of this bias is seen in the case of a Dallas woman who applied for a Federal air traffic controller job. She scored a perfect 100 percent on the civil service examination, but because of job preferences automatically given to veterans, she was ranked 147th on the job roster. A. Otten, "Congress and the Veterans Lobby," Wall Street Journal, July 26, 1978, at 12. The House of Representatives recently voted to retain existing veterans preference standards by adopting an amendment to H.R. 11280, Civil Service Reform Act of 1978. 124 Cong. Rec. H9401 (daily ed. Sept. 11, 1978). 46. International Brotherhood of Teamsters v. United States, 413 U.S. 324 (1977). 47. Dothard v. Rawlinson, 433 U.S. 321 (1977). See P. Ogg, Title VII: Are Exceptions Swallowing the Rule? 13 Tulsa L. J. 108 (1977). 48. General Electric Co. v. Gilbert, 429 U.S. 12S (1976). Workers disabled by pregnancy, however, cannot be denied accumulated seniority. Nashville Gas Co. v. Salty, 434 U.S. 136 (1977). In the 1978 session. Congress amended Title VII to require that pregnancy, childbirth, and related medical conditions be treated the same as other disabilities under employer programs. Act of Oct. 31, 1978, Pub. L. No. 95-555. 92 Stat. 2076-77 (to be codified in 42 U.S.C. 2000e). 49. See. e.g., Johnson v. University of Pittsburgh, 435 F. Supp. 1328 (W.D. Pa. 1977). See generally, Vladeck and Young. Sex Discrimination in Higher Education, 4 Women's Rights L. Rep . 59 (1978). 50. Johnston and Knapp, Sex Discrimination by Law: A Study in Judicial Perspective, 46 N.Y.U. L. Rev. 675. 676 ( 1971). 51. U.S. Working Women, supra, at 44. 52. See, Brown et al., Women's Rights and the Law, supra, at 223-25 (description of State reform efforts). 53. Cf. P. Ogg, "Title VII...," supra. 54. In some instances, however, men have received harsher treatment in the criminal justice system. See generally Brown et al., Women's Rights and the Law, supra, at 45-96. 55. See Farr v. State, 304 So.2d 898, 902 (Crim. App. Ala. 1974); Warren v. State, 34 Ala. App. 447, 41 So.2d 201 (1949). 56. As of 1977 rape statutes in 27 States provided for the husband's immunity. See, e.g., Cal. Penal Code 261 (West Supp. 1976); La. Rev. Stat. Ann. 14.41 (West Supp. 1976). See generally, The Marital Rape Exemption, 52 N.Y.U.L. Rev. 306 (1977). As an example of lesser protection given men under criminal laws approximately 25 States do not protect any male victims of sexual assault in their forcible rape statutes. See Brown et al., Women's Rights and the Law, supra, at 46. 57. For example, the Alaska statute defining prostitution refers specifically to "females." Alaska Stat. 11.40.210 (1970). See generally, Brown et al., Women's Rights and the Law, supra at 66. 58. Id. at 67. See, e.g., Ill. Ann Stat. ch. 38, 11-14, 11-18 (Smith Hurd 1977); Kan. Stat. Ann. 21-3512.21-3515. 59. American Bar Association Commission on Correctional Facilities and Services, "Women in Detention and Statewide Jail Standards," 7 Clearinghouse Bulletin 1, 7-8 (March 1974), reports that 70 percent of female youths are detained for status offenses while only 23 percent of male youths are detained for such offenses. See also P. Cohen, "A Double Standard of Justice," 10 Civil Rights Digest 10 (Spring 1978); Female Offender Resource Center, Survey of Educational and Vocational Programs in State Juvenile Correctional Institutions (American Bar Association, 1975). 60. U.S., Department of Justice, Law Enforcement Assistance Administration, Office of Juvenile Justice and Delinquency Prevention, Little Sisters and the Law (1977). According to this study, girls have longer average confinements than boys even though the vast majority of the boys (82 percent) were criminal offenders and nearly half of thc girls were status offenders (p. 16). See also, R. Vinter and R. Sarri, Time Out: A National Study of Juvenile Correction Programs (National Assessment of Juvenile Corrections, University of Michigan, 1976). 61. Brown et al., Women's Rights and the Law, supra, at 83. See, e.g., Conn. Gen. Stat. Ann. 18-65. 62. Brown et al.. Women's Righrs and the Law, supra, at 83. 63. See, e.g., Crisman, Position Paper on Women in Prisons 2 (unpublished report, ACLU Nat'l Prison Project 1976); Haft, "Women in Prisons: Discriminatory Practices with Some Legal Solutions," 8 Clearinghouse Review 1 (1974). See generally, U.S. Commission on Civil Rights, Information Sources: Women in Prison (1975). 64. Extending the Ratification Period for the Proposed Equal Rights Amendment: Hearings Before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 95th Cong., 1st and 2d sess., 337 (1977-78) (testimony of Frankie Freeman, Commissioner, U.S. Commission on Civil Rights). 65. S. Rep. No. 92-689, Senate Committee on the Judiciary, 92d Cong., 2d sess., 8 (1972). 66. Bureau of Occupational and Adult Education, Comparative Analysis of Vocational Education Enrollment by Sex in Fiscal Year 1972 and 1975 (unpublished report, U.S. Office of Education). 67. See A. Novick and D. Griffiths, Sex-Segregated Public Schools: Vorchheimer v. School District of Philadelphia and the Judicial Definition of an Equal Education for Women, 4 Women's Rights L. Rep. 79 (1978). 68. Vorchheimer v. School District of Philadelphia, 400 F. Supp. 326 (E.D. Pa. 1975), rev'd, 532 F.2d 880. (3d Cir. 1976), (aff'd mem by an equally divided Court, 430 U.S. 703 (1977). 69. Frontiero v. Richardson, 411 U.S. 677, 692 (1973) (concurring opinion). 70. National Federation of State H.S. Association, 1977 Sports Participation Survey (1977). 71. Margot Polivy, attorney for the Association for Intercollegiate Athletics for Women, quoted in "Comes the Revolution," Time, June 26,1978. 72. Social Indicators, supra, at 14-16. 73. On Campus with Women (Association of American Colleges, June 1978), citing figures from No Progress This Year: Report on the Economic Status of the Profession, 1976-77 (American Association of University Professors). See Suzanne Howard, But We Will Persist: A Comparative Research Report on the Status of Women in Academe (American Association of University Women, 1978). 74. A.W. Astin, Data Pertaining to the Education of Women: A Challenge to the Federal Government (unpublished paper, 1978). 75. 20 U.S.C. 1681-86 (1976). In addition to applying only to federally-financed schools, the statute has several exceptions. Institutions and the activities expressly exempted include: (1) admissions to elementary and secondary schools, private undergraduate colleges, and public colleges that have been single sex from the beginning; (2) military training schools; (3) religious schools where compliance with Title IX would be inconsistent with religious tenets; and (4) Boys State/Girls State 20 U.S.C. 1681(a). In addition, Federal regulations promulgated under Title IX expressly exempt such activities as the "Y," Boy Scouts, Girl Scouts, and Campfire Girls. 45 C.F.R. 86.11 (1977). 76. See Project on Equal Education Rights ("PEER"), Stalled at the Start (1977); American Friends Service Committee, Almost as Fairly (1977). 77. The HEW regulations became effective June 4, 1975. See PEER, Stalled at the Start, supra. With respect to other agencies, see National Advisory Council on Women's Educational Programs, The Unenforced Law: Title IX Activity by Federal Agencies Other Than HEW (1978). 78. See consent order in Adams v. Califano, No. 3095-70 and WEAL v. Califano, No. 74-1720 (D.D.C. Dec. 29,1977). 79. National Coalition for Women and Girls in Education, Statement by Dot Ridings et al. 1 (June 26, 1978). 80. PEER, Stalled at the Start, supra, at 8. 81. The only Federal appellate court to decide so far whether private parties have an implied right to sue private universities under Title IX held that such right does not exist. Cannon v. University of Chicago, 559 F.2d 1063 (7th Cir. 1977) (on rehearing), cert. granted 46 U.S.L.W. 3799 (June 27, 1978). Another Federal appellate court recently has held that such a right can be implied under Title IX with respect to public schools. De la Cruz v. Tormey--F.2d--(9th Cir. Sept. 13, 1978). As to employment discrimination in educational institutions, recent district court decisions have held that Title IX does not apply at all, thereby limiting the statute's scope to students. See, e.g., Romeo Community Schools v. HEW, 438 F. Supp. 1021 (E.D. Mich. 1977), on appeal to the Sixth Circuit. 82. Hoyt v. Florida, 368 U.S. 57 (1961). 83. Bradwell v. Illinois, 83 U.S. 130(1872). 84. Goesaert v. Cleary, 335 U.S. 464 (1948). 85. Minor v. Happersett, 88 U.S. 162 (1874). 86. 404 U.S. 71 (1971). See generally R. Ginsburg, "From No Rights, to Half Rights, to Confusing Rights," 7 Human Rights 13 (1978). 87. 411 U.S. 677 (1973). 88. Frontiero v. Richardson, supra 411 U.S. at 691-2 (Justice Powell, concurring, joined by Justice Blackmun and Chief Justice Burger.) 89. See, e.g., Schlesinger v. Ballard, 419 U.S. 498 (1975) (upholding Navy rule guaranteeing female officers more years than male before mandatory discharge for lack of promotion; no consideration given ways men were advantaged by this difrerential); Kahn v. Shevin, 416 U.S. 35I (1974) (upholding exclusion of widowers from tax exemption granted to widows; the exception saved the widow who owned real property the sum of $15 annually and was granted to only two other classes of people: the blind and the totally disabled); Geldudig v. Aiello, 417 U.S. 484 (1974) (upholding a State statute that excluded women disabled by pregnancy from a workers' income-protection insurance plan.). 90. See, e.g., Califano v. Goldberg, 430 U.S. 199 (1977) (invalidated social security provision requiring widowers to prove they had been dependent on their wife's income while automatically qualifying widows for survivors' benefits); Craig v. Boren, 429 U.S. 190 (1976) (invalidating State law that allowed 18-year-old girls to purchase beer but made boys wait until they were 21); Weinberger v. Weisenfeld, 420 U.S. 636 (1975) (invalidating social security provision that denied widowed fathers who wished to take care of their children the same benefits available to widowed mothers). 91. Vorchheimer v. School District of Philadelphia, 532 F.2d 880 (3d Cir. 1976), aff'd mem by an equally divided Court 430 U.S. 703 (1977). 92. See generally, A. Novick and D. Griffiths, Sex-Segregated Public Schools. . ., supra, and discussion supra in "Education," ch. 2. 93. Regents of the University of California v. Bakke, 438 U.S. --, 98 S. Ct. 2733, 2755 (1978). 94. Id. at 4903. For a discussion of parallels between race and sex discrimination, see G. Myrdal, An American Dilemma, 1073-78 (1962 ed.). 95. R. Ginsburg, "From No Rights . . .," supra, at 47. 96. See Brown et al., Women's Rights and the Law, supra, at 15-19.