Phillips v. Martin Marietta Corporation (1971)
On a hot Florida night in September 1966, Ida Phillips sat down at her kitchen table to write a letter. Her small frame bowed over a tablecloth printed with green and orange flowers, she quickly filled three small pages with her tidy cursive. “To the President of the United States,” she wrote. “As of this date, September 6, 1966 at 7 p.m., I answered an employment ad of Martin Co. of Orlando, Fla. in which the co. seeks 100 assembly trainees. However after completing my application I was told by the receptionist that my application could not be honored due to the fact that I have a pre-school child.”1
A neighbor had alerted Phillips to the newspaper notice placed by the Martin Marietta Corporation, a missile manufacturer with a sprawling facility ten miles from downtown Orlando.2 With a workforce numbering in the thousands, it was one of the largest employers in the city.3 Entry-level jobs on the assembly line paid up to $125 a week,4 more than double what Phillips was earning as a waitress at the Donut Dinette.5 Even better, the job came with a pension plan and benefits, including insurance. “You’d better get down there early,” the neighbor advised. Because he worked at Martin Marietta, he told Phillips to list him as a reference. “There’s gonna be a lot of people over there looking for that job.”
Phillips resolved to be one of them. Thirty-two years old and the mother of seven children ranging in age from three to sixteen, she was barely scraping by. Every day she counted up the tips that she’d made during her shift and decided what she could afford to buy for that night’s supper; the little bit she had left over got tucked away to cover the bills. She certainly couldn’t count on the wages her husband, Tom Phillips, got from working as a mechanic. Those he usually drank.
So Phillips, a vivacious, dimpled redhead, had driven the ten miles to the Martin Marietta facility on Kirkman Road to submit an application. When she got to the front of the line, the receptionist asked her if she had any preschool-age children. Hearing that Phillips had a three-year-old, the woman declined to let her apply. It didn’t matter that Phillips’s daughter was enrolled in day care6 or that she also had plenty of backup child care, including a sister who lived nearby and the stay-at-home mother who lived just next door. The company simply wouldn’t hire women with kids that young. “I felt like the world had caved in on me,” Phillips recalled. “I had my hopes up so much for it.”7 She needed those wages, and her kids needed those benefits.
That’s when Phillips decided to write President Lyndon Johnson. “My President, may I say that I believe that this is unjust from the policies that you have administered during your term of office,” she implored. “As equal opportunities, as equal employment and constitutional rights.”8 Phillips hadn’t grown up paying much attention to politics, but she had recently registered to vote and started “read[ing] the papers cover to cover.”9 She may not have known specifically about the 1964 Civil Rights Act, but she plainly suspected that Martin Marietta was doing something unlawful.
Phillips’s daughter, Vera Tharp, remembered that when their neighbor stopped by that night to check how Phillips had made out, he was incredulous. After all, he had kids in preschool and the company had never objected. “You need to go back over there,” he urged, “and you just ask them why.” Phillips agreed and returned to the plant the following day, but the receptionist wasn’t giving any explanations. She just repeated the rule: Women with small children were not eligible for hire.
Less than a week after she’d put her letter in the mail, Phillips got a response from the White House. Her complaint, she was told, had been forwarded to the U.S. Equal Employment Opportunity Commission, the federal agency tasked with enforcing Title VII, for further investigation.10
The following summer, the EEOC issued a decision in Phillips’s favor.11 In November 1967, having tried unsuccessfully to convince the company to settle the case by giving Phillips the job she’d applied for,12 the EEOC mailed a notice to Phillips, who by then had moved with her family to Jacksonville. The agency had done all it could, it said, but she had the right to continue the case on her own by filing a lawsuit in federal court.13 Phillips definitely wanted to press on; she was too angry not to. Now she needed to find a lawyer.
* * *
The first attorney Phillips called told her, in her words, “he didn’t think enough of the case to fool with it.”14 Undeterred, she said she got the idea she “should look for a Negro attorney, because [I] knew they knew more about civil rights.”15 A prominent African American attorney in town, Earl Johnson, was running for City Council, so Phillips met with him. Unfortunately, the campaign was taking up most of his time, he told her, and he referred her to a young black lawyer who’d just joined his law office, Reese Marshall.16
Then just a year out of Howard University Law School, Marshall was participating in the fledgling but already illustrious internship program at the NAACP Legal Defense and Educational Fund. Founded in 1940 by future Supreme Court Justice Thurgood Marshall, LDF was the country’s preeminent litigation firm attacking the racial inequality that was still commonplace in American life—in education, voting, the criminal justice system, housing, public accommodations, and employment. LDF had devised and executed the litigation strategy attacking the “separate but equal” legal doctrine that had culminated in the Supreme Court’s landmark Brown v. Board of Education17 decision in 1954.
Recruiting and training foot soldiers to help wage the civil rights battle in the courts, the LDF internship program included a one-year stint in LDF’s New York headquarters that Marshall had just completed, followed by three years litigating in the field under the tutelage of a more experienced attorney. Marshall was spending his three years with Johnson, one of LDF’s national network of “cooperating attorneys,” who represented Florida’s NAACP chapter.
Today a solo practitioner in Jacksonville specializing in personal injury cases, Marshall has the sort of languid, sonorous voice, wide smile, and easy laugh that convey calm; but back in the 1960s, he handled cases that were anything but. Throughout Florida’s Klan country, he represented indigent black defendants facing lengthy sentences for trumped-up “crimes” like spitting on the sidewalk.
Despite his professional focus on dismantling the Jim Crow regime and despite Ida Phillips’s being white, Marshall felt a personal affinity for her story. Like Phillips, Marshall’s mother had little formal education, having left school in the fourth grade. A single mother of four, she moved to New York City to try to make a better living when Marshall was still in elementary school. He and his two older brothers stayed in Fort Lauderdale with his grandparents, farmers who grew beans and eggplants. (His older sister was already away at college.) When Marshall contracted polio in the ninth grade, his mother, worried about the substandard medical care available to a black child in 1950s Florida, sent for him. Marshall and his brothers took a Greyhound bus to join her in the Bronx. In the years to come, he grew up watching his mother make ends meet alone while also managing to shepherd three of her four children to college graduation.
Marshall was intrigued by Phillips’s case. Pulling out a statute book, he reread Title VII, which had gone into effect the prior year, and registered for the first time that on the list of protected characteristics was “sex.” (“Sure enough,” he later recalled, “I looked and said, yeah, there it is.”) Martin Marietta’s policy, it seemed to Marshall, presented a pretty straightforward case of sex discrimination: The company barred women with young children from working there, but not men in the same situation. If that wasn’t discrimination “because of sex,” what was? And Marshall liked Phillips. Her outrage at Martin Marietta, at its bald-faced denigration of working mothers, was contagious. “It wasn’t just about her; it was about all the other women who were in her position who were thrown aside just because they had children,” he explained. Marshall decided he was in. “Let’s test the waters,” he said.
As Marshall contemplated taking on a behemoth like Martin Marietta, including what would undoubtedly be an army of well-financed defense attorneys—he predicted he was “going to get the kitchen sink thrown” at him—he knew he could use some help. Marshall contacted LDF and a few other big names in the civil rights legal world. To his surprise, though, he couldn’t get anyone interested in Phillips’s case. At the time, there were few groups to call on devoted specifically to women’s rights. The National Organization for Women had been founded just one year earlier, and as New York Times columnist Gail Collins would later report, making contact with its leadership was a “little like trying to find the early Christians.”18 Other now-illustrious national women’s advocacy organizations—the American Civil Liberties Union’s Women’s Rights Project, for example, or the National Women’s Law Center—simply didn’t exist yet.
Nevertheless, convinced that Title VII had been violated and heartened by the EEOC’s endorsement, Marshall plowed ahead alone. (His only hope for eventually getting paid rested with Title VII’s requirement that if a plaintiff wins, the defendant has to cover her attorney’s fees.) On December 12, 1967, he filed a complaint in the U.S. District Court for the Middle District of Florida, seeking an order finding the company in violation of Title VII, directing it to hire Phillips, and requiring it to pay her back wages. The case was assigned to Judge George Young, a recent appointee. Within weeks, it was clear how Phillips’s claim was going to fare: In an unusual move, without any prompting from Martin Marietta, Young issued an order that eviscerated Phillips’s claim. Declaring that discrimination against women with young children did not qualify as discrimination “because of sex,” he deleted that part of Phillips’s complaint. Instead, Young ruled, her complaint would proceed as if Phillips had alleged that the company’s policy was not to hire any women at all.
That was a case that couldn’t be made; Martin Marietta submitted ample evidence to Young that the vast majority of people hired as assembly trainees were women. A few months later, citing that evidence, Young found no evidence of sex discrimination and granted judgment to the company.19 Although Martin Marietta hadn’t denied that it hired men with preschool-age children, Young declared that fact irrelevant. “The responsibilities of men and women with small children are not the same,” he opined, and “employers are entitled to recognize these different responsibilities in establishing hiring policies.”20
To Reese Marshall, Young’s dismissive treatment of Phillips’s claim—“quick, fast, and in a hurry,” as he ruefully described it—was simply “devastating.” Yet he was steadfast in his belief that the case had “a good, right feel to it.” Unquestionably, there was little legal authority for Marshall to cite; Title VII was so new that the Supreme Court had never had to consider what discrimination “because of sex” meant. Indeed, no other court had ever decided a case like Phillips’s. The fact was that Martin Marietta’s policy, not to mention Judge Young’s rationale for endorsing it, was rooted in the stereotypical notion that women necessarily cared more about motherhood than about their jobs—exactly the kind of bias Title VII was surely meant to outlaw. Marshall resolved to appeal.
“I just felt like we would get a better ear in the appellate court,” Marshall said. “Someone is going to see this and understand what we’re talking about.” Given that it was the Fifth Circuit that would be hearing the case, there was reason to be hopeful; although since that time it has come to be considered one of the most conservative courts in the country, in the late 1960s, the Fifth Circuit was one of the most liberal. Nicknamed the Supreme Court of Dixie,21 owing to its jurisdiction over a wide swath of former Confederate states—Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas—it had gained notoriety in the years following Brown v. Board of Education as fertile ground for civil rights litigators attacking Jim Crow.
Before filing Phillips’s appeal, Marshall tried once more to interest national civil rights groups in the case, only to be rebuffed again; whatever doubts they might have had about using Phillips’s claim to test the “because of sex” provision almost certainly had been confirmed by Judge Young’s swift dismissal. So Marshall moved forward as the lone counsel. He did manage to secure the endorsement of the EEOC, which filed a brief as an amicus, or friend of the court. (Such submissions from outside interest groups help educate the court about the larger issues raised by the litigation and explain its potential wider impact on people beyond the individual parties involved in the case.)
In addition to having found in Phillips’s favor, the EEOC had a larger agenda to promote. In 1965, the year Title VII went into effect, the agency had issued “Guidelines on Discrimination Because of Sex.” Though lacking the force of law, the Guidelines informed employers, and judges, of the government’s view of what Title VII’s “sex” provision meant. One of the Guidelines’ directives was that employers not refuse to hire a woman “based on assumptions of the comparative employment characteristics of women in general,” such as “the assumption that the turnover rate among women is higher than among men.”22 Another provision stated that employers couldn’t base their hiring decisions on “stereotyped characterizations of the sexes,” including “that men are less capable of assembling intricate equipment; that women are less capable of aggressive salesmanship.”23
Most pertinent, perhaps, was the Guidelines’ provision about a different subset of women—those wearing wedding rings. “It does not seem to us relevant that [a] rule is not directed against all females, but only against married females,” the Guidelines explained. “[S]o long as sex is a factor in the application of the rule, such application involves a discrimination based on sex.”24
* * *
Although two years had passed since Ida Phillips first applied to Martin Marietta, not much had changed in her life. Case documents filed with the Fifth Circuit include an affidavit attesting to a hardscrabble existence: Phillips was waiting tables at a restaurant called the Derby House, making $120 a month—roughly what she would have made in just one week at Martin Marietta. Phillips’s kids helped their mom make ends meet by pitching in at the restaurant after school; Al, then thirteen, helped fill water glasses and wash dishes, as sisters Peggy and Vera had when they were his age, before they graduated to waiting tables. Brother Ronnie became a cook. In her affidavit, Phillips stated she had no savings or checking account.
It was a life very similar to what she’d experienced growing up during the Depression in rural South Carolina. Born Ida Watford, she was a sharecropper’s daughter and one of eight children, with a few more who had died at birth or soon after. At fifteen, she met Fred McAlister, a long-distance truck driver and sometime mechanic; they wed after Ida learned she was pregnant. Although that baby died, by the time she was twenty-five, she had had six other children. The family had gone where McAlister found work, first in Bowie, Maryland, and Washington, DC, finally landing in Orlando in 1960.
During her years as Mrs. McAlister, Phillips had always helped to supplement her husband’s income. When the kids were little, she sold Avon, Tupperware, and Sarah Coventry jewelry out of their home, and when they were older, she waited tables. In Florida, she worked for the first time in a factory, sorting citrus fruits into crates. Recalling their mother’s speedy hands as the fruit came down the conveyor belt, her pay dependent on how many boxes she filled, her kids Peggy, Vera, and Al laughed at the similarity to the famous Lucille Ball candy factory sketch, right down to their mother’s auburn hair. Coloring it had been one of their mother’s few indulgences, if only out of a drugstore bottle.
The marriage was troubled, though; Fred McAlister had a drinking problem. He and Ida divorced, and she drifted into a relationship with a mechanic named Tom Phillips. It was with him that Phillips had her seventh child—Gracie, named after Ida’s mother. Gracie was the one who was preschool age by the time Phillips tried to submit her application to Martin Marietta. Tom Phillips was decent at the beginning, but soon his true colors began to show. He beat Ida and the kids; Al was the only one who could talk him out of his rages. Ida Phillips was trapped in the marriage, terrorized and virtually penniless. To observers like Reese Marshall, Tom Phillips appeared to support Ida’s lawsuit against Martin Marietta, but her kids always believed he was in it only because he thought it might yield a big payday. Not until the mid-1970s, when Tom was sent to prison for murdering a friend, would the family be free of him.
* * *
From the beginning of his oral argument before the Fifth Circuit, it was clear to Marshall that all three of the judges on the panel agreed with Judge Young. When they issued their written opinion in May 1969, then, it came as no surprise. They found that Martin Marietta hadn’t discriminated “because of sex” because the company didn’t exclude all women, just some women:
Ida Phillips was not refused employment because she was a woman nor because she had pre-school age children. It is the coalescence of these two elements that denied her the position she desired.25
The court went on to specifically reject the EEOC’s urged interpretation of Title VII. That interpretation, said the court, required believing that Congress had the “intent to exclude absolutely any consideration of the differences between the normal relationships of working fathers and working mothers to their pre-school age children, and to require that an employer treat the two exactly alike in the administration of its general hiring policies.” Nonsense, the court concluded. “The common experience of Congressmen is surely not so far removed from that of mankind in general as to warrant our attributing to them such an irrational purpose in the formulation of this statute.”26
Marshall and Phillips were still licking their wounds from the Fifth Circuit’s resounding rejection when a curious letter arrived from the court’s clerk. “Pending further order of the Court,” it read, “the mandate heretofore issued is being recalled.”27 One of the other eleven judges on the court, Marshall learned, had proposed rehearing the case—but this time before all of them, not just a three-judge panel. Referred to as en banc review, such a procedure is reserved for those occasions where judges within the same court object to the outcome reached by their colleagues in a certain case. This was the first indication that Marshall’s legal arguments weren’t falling on deaf ears, and he was “elated.” “That’s what we were looking for,” he said. “Somebody who would look at this thing and understand where we were and what we were trying to say.”
Three months later, though, he and Phillips got more bad news. Without any explanation, a majority of the court had decided against rehearing the case.28 But included with this new denial by the Fifth Circuit, there was an impassioned dissent. Authored by Chief Judge John Brown—known for his progressive rulings throughout the civil rights maelstrom of the prior two decades—it was signed as well by two of his colleagues. “The case is simple. A woman with pre-school children may not be employed,” but “a man with pre-school children may,” Brown wrote. “The question then arises: Is this sex-related? To the simple query the answer is just as simple: Nobody—and this includes Judges, Solomonic or life tenured—has yet seen a male mother.”29
Judge Brown sardonically dubbed the court’s interpretation of Title VII the “sex plus” test: All an employer had to do was use sex “plus” another characteristic as its screening mechanism, and it could get a free pass to discriminate. As the judge explained, “sex plus” would cause the statute’s death by a thousand cuts, freeing employers to disqualify ever-wider groups of women workers simply by including a “plus” characteristic in their policies that they didn’t also apply to men—barring women who were below a certain weight, for instance, or whose biceps were too small.30 He made a grave prediction: “If ‘sex plus’ stands, the Act is dead.”31
* * *
In the fall of 1969, a young African American lawyer at the NAACP Legal Defense and Educational Fund named Bill Robinson walked down the hall to see his boss, LDF’s director-counsel, Jack Greenberg, to discuss whether they should take Ida Phillips’s case to the Supreme Court. Former LDF intern Reese Marshall had called with news of the Fifth Circuit’s ruling and Judge Brown’s dissent. Tall and lanky, Robinson was just five years out of Columbia Law School, but he already headed LDF’s burgeoning Title VII litigation team.
Using strategically selected race discrimination lawsuits around the country, LDF attorneys sought to use the new federal law to dismantle the machinery of segregation that kept African Americans out of high-paying manufacturing jobs. Based on information gathered with the help of civil rights field organizers, they had identified three main targets: rules for job applicants, such as aptitude tests or high school diploma requirements, that operated to keep blacks out (due to the poor education available to them in many parts of the country); seniority rules that assured they were the first fired in the event of a layoff (because white workers had been on the job longer); and openly biased practices by labor unions, including the refusal to refer them for work (assuming the union allowed blacks to join in the first place).
Sex discrimination cases had not been part of that strategy. But three years after Marshall had first tried to enlist support in litigating Phillips’s case, he finally succeeded. The blistering dissent from Judge Brown, lending urgency to the wide range of issues at stake, could not have hurt. It was clear to both Greenberg and Robinson, in any event, that the case fit within LDF’s mission. For one thing, statistics showed that working mothers, whether married or single, were more likely to be African American; as a matter of sheer demographics, then, the “sex plus” rule would inevitably affect black women disproportionately. Moreover, Greenberg and Robinson saw the Fifth Circuit’s “sex plus” rationale as dangerous precedent. For it could just as easily be refashioned as “race plus”—not to mention “national origin plus” or “religion plus”—and used to exclude whole categories of workers, male and female.
Robinson called Reese Marshall and gave him the green light. Marshall, glad to have some good news to share with Ida Phillips, assured her that the LDF lawyers were “top notch” and would keep them both in the communication loop, rather than just taking over. “I think we’re going to be all right,” he told his client.
* * *
The Supreme Court, unlike the federal appellate courts, doesn’t accept appeals from just anyone who wants a hearing. The Court rejects the vast majority of requests—petitions for certiorari, or cert petitions for short—it receives every year. As Anthony Lewis put it in Gideon’s Trumpet, his legendary account of the Court’s 1963 Gideon v. Wainwright32 decision establishing criminal defendants’ right to counsel, “[O]ne of the most important duties of the Supreme Court has been to decide whether it will decide.”33 In the 1970s, an average of 4,000 petitions were submitted, and the Court granted just 4 percent of them.34 (By 2004, the number of petitions had nearly doubled, to roughly 7,500, but the acceptance rate had decreased to just 1 percent.35) Although there are no hard-and-fast rules decreeing what cases the Court will and won’t take, history has provided a few indicators: for instance, when it is necessary to settle a split in opinion among the federal courts of appeals, so as to assure uniform application of the law; or when the disputed legal issue is of such great importance—and the decision being appealed so grossly wrong—that it may be imperative the justices step in to make a correction. At least four of the nine justices must vote in favor of review for the writ of certiorari to be granted.
Given that Title VII was only four years old when the Phillips case came to the Supreme Court’s attention and there were few cases interpreting its ban on sex discrimination, Robinson and his CDF team focused on trying to convince the justices that the Fifth Circuit had made a grave error. The law had barely been given a chance to work, for women or for anyone else, they argued, before being sharply and unfairly curtailed. Crafting the cert petition to magnify the issues at stake, the lawyers sought to convince the Court that the case was far bigger than just Ida Phillips or Martin Marietta.
To this end, they focused on two key arguments. The first was that “sex plus” was a flat misreading of Title VII. Refusing to hire subsets of women was discrimination “because of sex.” Citing the EEOC Guidelines and the few lower court decisions interpreting the statute, LDF explained that “Title VII prohibits double standards, i.e., any practice which unequally restricts the job opportunities of women or imposes a burden on women not equally imposed on men.”36
Here LDF had to be pragmatic, tackling head on the attitude expressed by Judge Young—and endorsed by the Fifth Circuit, and possibly by many Supreme Court justices too—that “the responsibilities of men and women with small children are not the same, and employers are entitled to recognize these different responsibilities.”37 It was a historical reality that women usually had been the primary caregivers in most American families. And it was a present-day reality that, even though more women now worked outside the home, mothers still shouldered more of the child care responsibilities. Undoubtedly, for some mothers, child rearing did get in the way of doing their job.
What Martin Marietta’s policy did, though, was use these generalizations to assign certain traits—unreliability, lack of commitment—to all mothers. It took the stereotype that mothers cared more for their children than their jobs, and incorporated it into formal hiring criteria. LDF’s challenge was to alert the Court that reliance on assumed group characteristics would “deal a serious blow to the objectives of Title VII.” The law was supposed to treat applicants as individuals, not members of a group, the LDF team contended, giving them all an equal chance to get in the door. The cert petition explained:
While it may be argued that because a woman might have special responsibilities toward her children she may be treated differently in hiring, this fails to take account of the situation where peculiar responsibilities do not in fact affect job performance. . . . The Martin rule makes no attempt to assess family responsibility in any objective way. The use of such stereotypes is, we submit, the essence of unlawful discrimination prohibited by Title VII.38
LDF reminded the Court that if an employer believed women were incapable of doing a particular job, Title VII included a loophole. Where an employer could show that it was “reasonably necessary to the normal operation” of its business that a job be performed by one sex, then sex would be deemed a bona fide occupational qualification, or BFOQ, for that job. LDF told the Court the BFOQ exception arguably could be a way out for Martin Marietta, but only if it could show that “mothers of pre-school children are poor performers on the job.”39
LDF also used statistical evidence to remind the Court that mothers weren’t just working for “pin money.” Their earnings were increasingly critical to the survival of American families. There were 3.6 million mothers in the workforce who had at least one child under age six. African American women were overrepresented in this group: Among married women with small children, black women were nearly twice as likely as white women to work.40 Studies also showed that mothers with small children were more likely to work because of economic need, either because they were the sole breadwinners or because their husbands made too little for the family to survive.41 The message was clear: If the Fifth Circuit’s ruling was affirmed, millions of women—and millions more children—could face crippling economic consequences.
Finally, LDF also hoped to alarm the Court that discrimination because of “sex plus” wasn’t just a disaster for women. It led with Judge Brown’s warning that “[i]f ‘sex plus’ stands, the Act is dead.” Specifically, “race plus” couldn’t be far behind. “[T]he sex plus rule in this case sows the seeds for future discrimination against black workers through making them meet extra standards not imposed on whites.”42
On March 2, 1970, Robinson got the call from the Court. The justices had agreed to hear the case, and oral argument was scheduled for December. It would be the first time the Court had ever considered the meaning of Title VII’s “because of sex” provision. In fact, it would be the first time the Court had considered the meaning of Title VII, period. Robinson made the trip down the hall to Director-Counsel Greenberg’s office to tell him, naturally assuming that Greenberg would be the one presenting Phillips to the justices. Robinson had appeared before appellate courts but never the Supreme Court, whereas Greenberg was by now a Court veteran. And as the first Title VII case ever to reach the Court, Phillips was monumentally important. So Robinson was startled when Greenberg told him to get ready. He’d be the one arguing the case.
* * *
Reese Marshall remembered giving the news to Ida Phillips over the phone. They “hollered, screamed, and yelled” with joy. It was just the tonic needed to raise Phillips’s flagging spirits. She was still waiting tables, earning a fraction of what she would have made on the assembly line, and still struggling every day to keep her head above water at home. She wanted to make a difference not only for her family but also for other women43 and, so far, all she had to show for it was a lot of male judges telling her that Martin Marietta’s policy was perfectly legal. But the experience had ignited a bit of an activist spirit in her. She’d recently joined the local chapter of the National Organization for Women and even dragged her eldest daughter, Peggy, to a women’s rights rally in downtown Jacksonville. Not that she “[went] in for burning of bras and other silly things,” she later told a reporter. To her, she said, “Women’s Liberation means equal job opportunities.”44
Whatever trouble Marshall had had garnering national interest in the case ended when the Court agreed to decide it. “High Court to Hear Sex Discrimination Test” read the headline in The New York Times, while Martha Griffiths, the Michigan congresswoman who had taken the lead in ensuring the “sex” provision was included in Title VII, was quoted registering her outrage about the case. “I’m going to move to impeach the entire court” if it affirms the Fifth Circuit, she proclaimed, “because they are obviously not enforcing the laws as they are written.”45
Amicus briefs also started rolling in now. The U.S. solicitor general, the lawyer who represents the United States in legal matters, stepped forward to provide the federal government’s support, as did the EEOC, while NOW—by then four years into its existence—and the American Civil Liberties Union and Human Rights for Women each filed a brief.
Those submissions sought to build on the cert petition, specifically by bringing the justices up to speed about the realities of the modern family. The stereotype of a two-parent household, in which the husband earned enough so that the wife could stay home with the kids, was simply a thing of the past. As of 1969, only about half of American families fit that mold, according to Department of Labor figures.46 The reality was that nearly 40 percent of the nation’s families were dependent on women’s wages; in 30 percent of those families, both spouses worked, while in nearly 8 percent of them, a woman was the sole breadwinner.47 Notably, 35 percent of those female-headed households were below the poverty line, and in African American families, women’s wages were more important yet.48 Indeed, the stereotype of a stay-at-home mother never had applied with equal force to black women.49
The amicus briefs also spelled out the sheer numbers of women who would face job loss were the Court to approve the “sex plus” doctrine and allow other employers around the country to follow suit. Of the 37 percent of women in the American workforce, a little more than a third were mothers of children age eighteen or under.50 Of those more than ten million women, four million had children who were preschool age.51 If additional “plus” factors were permitted by the Court, the numbers skyrocketed. As the ACLU pointed out, policies excluding various “plus” categories of women could be catastrophic. Excluding women whose “plus” factor was being married, for instance, would knock 17.5 million married women out of their jobs; sex “plus” being divorced would bar 1.6 million women from the workplace; sex “plus” being widowed would mean 2.6 million additional women were excluded.52
Nor was the ban on married women strictly hypothetical, as detailed in an amicus brief submitted by the Air Line Stewards and Stewardesses Association. The ALSSA was the labor union representing the flight attendants for seven of the nation’s major airlines, totaling thirteen thousand people—twelve thousand of them women. Flight attendants had a great deal on the line in Phillips. After Title VII was enacted, female flight attendants were among the first to utilize the ban on sex discrimination, challenging the panoply of regulations from which their male colleagues were exempt: maximum weight restrictions, age limits (mandating retirement no later than age thirty-five), rules forbidding pregnancy, and marriage bans—all of them policies designed to reinforce flight attendants’ image as sexually available eye candy for their (mostly male) passengers as they lit cigars, mixed Manhattans, and fluffed pillows.
As Gail Collins recounted in When Everything Changed, the average tenure of a flight attendant in the 1960s was just eighteen months, thanks to rules requiring women to quit if they got married.53 Some airlines even used this turnover as a marketing ploy. An American Airlines ad from 1965 featured the caption, “People keep stealing our stewardesses,” underneath a cartoon of a man furtively absconding with a flight attendant, mannequin stiff, his hand clamped over her mouth. “Within 2 years, most of our stewardesses will leave us for other men. This isn’t surprising. A girl who can smile for 51⁄2 hours is hard to find. Not to mention a wife who can remember what 124 people want for dinner. (And tell you all about meteorology and jets, if that’s what you’re looking for in a woman.)”54 The ALSSA told the Court that an opinion upholding “sex plus” would be disastrous for its membership. It detailed all of the age, pregnancy, and marriage policies that the major airlines had rescinded after Title VII’s enactment and warned that a ruling in Martin Marietta’s favor could undo such progress.55
It was “like manna,” said Reese Marshall, to have so many people weighing in on Phillips’s side before the Court. “We were just so amazed that we had all of these great and wonderful people stepping in to help.”
* * *
A Supreme Court oral argument is not a trial; there are no testifying witnesses, and only each party’s lawyer, allotted just thirty minutes to cover all of the pertinent points, speaks to the nine justices. Nor is oral argument simply a matter of delivering a prepared speech. An attorney is lucky to get out a few opening remarks before the justices begin firing questions, teasing out the underpinnings of his or her argument, challenging those they find unpersuasive, and posing hypothetical scenarios to test the parameters of the urged legal principles. And all the while, the clock is running.
Whether oral argument affects the outcome of a Supreme Court case is a matter of much debate, with many advocates believing that it has little effect. But recent research has suggested that a high-quality argument can make a difference, even where the position advocated is contrary to a particular justice’s ideological leanings. The justices themselves have also spoken of how oral argument may affect their view of a case. “[I]f an oral advocate is effective,” Chief Justice William Rehnquist explained, “how he presents his position during oral arguments will have something to do with how the case comes out.” According to Justice William Brennan, “I have had too many occasions when my judgment of a decision has turned on what happened in oral argument,” while Justice Harry Blackmun has said, “A good oralist can add a lot to a case and help us in our later analysis of what the case is all about. Many times confusion [in the brief] is clarified by what the lawyers have to say.”56
A common component of an attorney’s preparation for oral argument is the “moot court,” a high-stakes dress rehearsal with various players—lawyers, professors, and other experts—acting the roles of the justices. The aim is to so thoroughly vet every angle of a case that a question never arises during the actual argument that the attorney has never heard before. For his first Supreme Court argument, Robinson underwent no fewer than three moot courts: one with his colleagues on LDF’s Title VII team, one with Columbia Law students enrolled in a class Jack Greenberg was teaching, and a third composed of various attorneys drawn from outside LDF. It was a busy time at LDF; soon after the cert petition in Phillips was granted, the Court accepted another of the group’s Title VII cases. That one, Griggs v. Duke Power Company, fit more squarely within LDF’s core litigation strategy, challenging a utility company’s requirements that applicants have a high school diploma and achieve a passing score on a general aptitude test.57 The argument in Griggs was scheduled for just five days after Phillips, and Director-Counsel Greenberg would be arguing it.
On the morning of the December 9, 1970 argument in Phillips, Bill Robinson’s wife was back in New York, due to give birth at any moment to their first child. But Robinson felt focused and ready. Reese Marshall and his wife were there, as were Ida and Tom Phillips, who had driven up from Florida.58 They had brought with them Ida’s daughter Vera and their daughter Gracie, though the girls stayed at Ida’s sister’s house during the argument itself. Marshall’s law partner, Earl Johnson, rounded out the Florida contingent in the gallery. Ida Phillips’s children recalled that she was “in awe” of being at the Supreme Court to hear her case argued. (She had been disappointed, though, to learn that she would only be allowed to observe. She had hoped for the opportunity to address the justices personally.) Phillips later told a reporter that she also got the added thrill of being treated as something of a celebrity before the argument: “There I was sitting in the courtroom and a teacher from Georgetown University was telling her class about sex discrimination and wondered whether Ida Phillips was in the courtroom,” she remembered. “Can you imagine how I felt telling her I was Ida Phillips?”59
The nine justices filed in, with Chief Justice Warren Burger taking his place at the center of the bench, followed by the associate justices, who took their places on either side according to seniority. The most senior of them, Hugo Black, sat to Burger’s immediate right, and William O. Douglas to Burger’s immediate left. The remaining justices fanned down each side of the bench: To Black’s right were Justices John Harlan, Potter Stewart, and Thurgood Marshall, and to Douglas’s left were Justices William Brennan, Byron White, and the newest appointee, Harry Blackmun. Not for another decade would a woman be seated among them.
As the lawyer representing the party who had asked the Court to hear the case, Bill Robinson stepped to the lectern first. There were two lights perched on top: A white light would warn Robinson when he had only five minutes left in his thirty-minute argument; a red light would signal when time was up altogether.
“Mr. Chief Justice, and may it please the Court,” began Robinson, speaking calmly and deliberately, betraying none of the nervousness one would expect of someone who was not only making his first Court appearance but also awaiting his baby’s birth. After recounting the case’s background—Phillips’s original attempt to apply, Martin Marietta’s rejection, and then the various lower court proceedings—Robinson moved into his three main reasons for reversing the Fifth Circuit. He was able to list them without interruption. First, the Fifth Circuit’s ruling conflicted with the “basic purpose of Title VII,” because it relied on a sex stereotype—“that the father goes out and works, the mother stays home and takes care of the children”—as a reason for not hiring women. Second, it contradicted Title VII’s “plain language” forbidding discrimination “because of sex.” Robinson cited the statistic included in LDF’s cert petition (and again in its main brief submitted before the argument) that approximately four million mothers of small children would be left without job protection if “sex plus” were approved—and then noted the myriad “plus” factors that could be added to sex to further chip away at Title VII’s protections. Such loopholes could not have been what Congress envisioned when enacting the “because of sex” provision, Robinson explained; indeed, during Senate debate on the statute, a proposal to amend the provision to read “solely because of sex” had been rejected.60
And last, argued Robinson, “sex plus” would erode Title VII beyond recognition. “[I]f the Act permits discrimination on the basis of sex-plus, it would also seem to permit discrimination on the basis of race plus, religion plus, or nationality plus.”61 Here Robinson used examples that, he later explained, were intentionally “ridiculous,” so blatantly racist that no one would argue they comported with Title VII: “For example, an employer could then refuse to hire Negroes with chunky hair, or on the other hand Negroes with straight hair.”62 In this way, Robinson hoped to get past whatever hint of reasonableness the Court might see in Martin Marietta’s policy and expose “sex plus” for what it was: an end run around federal antidiscrimination protections.
Although the justices didn’t express outright hostility to Robinson’s argument, there was a skeptical, even bemused tenor to several of their questions about the scope of Title VII’s sex provision. For one thing, the notion that Title VII had done away with distinctions between “men’s jobs” and “women’s jobs” seemed to confound some of the justices. “Does the law require that the employer give the woman a job of digging ditches and things of that kind?” Justice Hugo Black asked Robinson, while Justice Harry Blackmun suggested that Robinson “educate me”: “[S]uppose a hospital for years had employed nothing but female registered nurses. And then today after the passage of this Act, a male nurse applicant comes along. Do I understand your interpretation of the Act to be that just because they have always had female RNs and like them and got along well, they could not refuse to hire the male nurse, in the absence of [satisfying the BFOQ exception] in the statute?” Robinson told Blackmun that was correct. Chief Justice Burger piped up. “The same would be true with private secretaries who by and large, 99 percent plus are women?” Correct, answered Robinson.63
Burger appeared especially uneasy with Title VII’s sex provision. Early in Robinson’s argument, the chief justice interrupted to ask whether “if a federal judge as a matter of general policy would decline to hire a law clerk who had an infant child, a lady law clerk, but was willing to hire a man whose wife had infant children, they would be in violation of the statute, if the statute applied to them?” After Robinson explained that Title VII did not cover the federal courts (a gap that would be closed two years later, when government employers were added to the law), Burger got a laugh from the gallery with his relieved response: “I am sure, it doesn’t apply to federal judges.”64 Then, after noting that Title VII’s prohibition on sex discrimination “was added to the Bill at a later stage,” Burger pressed Robinson to explain exactly how long had elapsed between the sex amendment and the vote approving the statute. But Robinson wouldn’t bite; the question could only have been intended to suggest that the antidiscrimination protections for sex somehow applied with less force than those to do with race, national origin, or religion. “I think in interpreting the statute as lawyers and judges, we should interpret the sex provisions just as we do the others irrespective of when it was added,” he said.65 Burger didn’t pursue the matter.
When Robinson sat down, a federal marshal handed him a note telling him to see the clerk after the argument. He knew what that meant; his wife had gone into labor. But he couldn’t leave just yet. LDF had agreed to cede a few minutes of Robinson’s allotted argument time to Lawrence Wallace, the U.S. solicitor general, after which Martin Marietta’s attorney would argue for thirty minutes, in turn followed by two minutes of rebuttal by Robinson.
Rising to speak as the federal government’s representative, Wallace echoed Robinson’s characterization of “sex plus” as a fundamental misreading of the law. Just as a state regulation prohibiting women with preschool-age children from voting would violate the Nineteenth Amendment, so did Martin Marietta’s rule violate Title VII. “You don’t have to exclude all women in order to be discriminating against women,” Wallace explained.66
Justice Black had a question about the contours of the BFOQ. Could an airline “decide that they only wanted to have the job position of stewardesses, that they didn’t want to have a job, position of steward” because “customers like women better in that place, younger women obviously”?67 Wallace answered that while the EEOC had formally disapproved of such rules, there still had not been a court decision on the issue.
Then other justices began asking about the kind of evidence that would satisfy the BFOQ exception in this case. Evidence that mothers were interrupting their work on the assembly line to make phone calls? Evidence of higher rates of absenteeism? Higher rates of accidents? Wallace strenuously argued that there would have to be a very strong group-related correlation between these kinds of performance problems and motherhood to justify a BFOQ. If a mother makes too many calls at work, misses too many days, or has too many accidents due to carelessness, she should be disciplined in the manner that a man would be; her failures, said Wallace, should be hers alone, and not imputed to all mothers as justification for a blanket ban on hiring them.68
Next up was Martin Marietta’s attorney, Don Senterfitt. A former banker, Senterfitt was a partner in one of Florida’s largest firms. Although the firm’s client roster was overwhelmingly corporate, it also sometimes worked for the other end of the ideological spectrum. During the 1960s, for instance, the ACLU—aligned with Ida Phillips in this case—had been a client. Indeed, there were hints that Senterfitt might have been uncomfortable with Martin Marietta’s stance in Phillips, too. Shortly before the oral argument, he had called Robinson to tell him he was going to be in New York and invited him to lunch. They met at the Four Seasons. The closest Senterfitt ever came to talking business was when he volunteered that on the first day Phillips had come to the Martin Marietta plant, company personnel had been overwhelmed by the number of applicants who had seen the newspaper ad. Hundreds of people had shown up. And so, in an ad hoc measure to make the process more manageable, Senterfitt explained, staff had come up with a number of eligibility criteria that would help thin the ranks—and not accepting applications from women with small children was one of them. Although Senterfitt never suggested Martin Marietta’s willingness to give up the legal fight and settle, Robinson surmised that Senterfitt hoped somehow to temper the message that the “fire-breathing liberals” of LDF planned to present to the Court. Robinson recalled with a laugh that although he’d enjoyed his first lunch in a five-star restaurant, Senterfitt’s pitch otherwise missed the mark.
Addressing the Court, Senterfitt tried a variation of his lunchtime message. The company didn’t deny that its receptionist may have told Phillips that women with young children couldn’t apply, but the company itself actually didn’t have any such policy. In fact, Senterfitt went on, Martin Marietta didn’t even agree with the Fifth Circuit’s “sex plus” rationale. He argued, however, that the lower courts’ rulings should stand because there wasn’t sufficient evidence to determine why Ida Phillips herself was or wasn’t denied a job. Judge Young had thrown the case out before that could be established.
But if the company did have a policy, the justices pressed him, it would be illegal, wouldn’t it? Senterfitt resisted such absolutes. The most he would concede was that, should the Court decide that Phillips deserved the chance to prove she had been denied a job because she had a preschool-age child, then the company likewise should get the chance to advance the BFOQ defense. It was a strange argument: Martin Marietta did not ban mothers of small children, but if it had, it would have been legally justified in doing so.
Toward the end of Senterfitt’s argument, Chief Justice Burger again took the opportunity to state his beliefs about women’s inherent skill sets. When Senterfitt explained that the Martin Marietta assembly trainee job was not “heavy work” but rather “intricate work” involving “small electronic components,” Burger stated matter-of-factly his assumption that that was precisely why women composed the bulk of the company’s workforce. “[W]omen are manually much more adept than men and they do this work better,” he said, adding, “Just the same reason that most men hire women as their secretaries, because they are better at it than men.” Senterfitt responded, with evident relief that elicited laughter from the gallery, “I am so pleased. I couldn’t say that because it appears to fall into this stereotype—preconception that the [EEOC] sees.”69
That the chief justice of the Supreme Court felt comfortable opining on women’s predisposition for secretarial work was dispiriting to observers from the women’s rights community. As Bernice Sandler of the Women’s Action League later described the argument to longtime women’s activist (and coauthor of the ACLU’s friend of the court brief in Phillips), Pauli Murray, “We have a long way to go.”70 It certainly would not have been considered funny if Burger had opined in open court about the inherent abilities of black versus white workers.
When Robinson returned to the lectern for his quick rebuttal, he urged the Court to take Martin Marietta’s assurances with a grain of salt. After all, the EEOC had tried to broker a settlement between it and Phillips four years earlier, and the company had refused. If Ida Phillips had been turned away simply because a receptionist was misinformed about the company’s policy, why hadn’t the company agreed to hire Phillips once it knew about her claim—or, at the very least, allowed her to submit an application? Why had the company, instead, fought for its right to reject her all the way to the Supreme Court?71
When Robinson finished, he grabbed his belongings and headed to the clerk’s office. His wife was in labor, he learned, but he couldn’t get through to the hospital for any more news. With assurances from Jack Greenberg’s wife that she would retrieve his luggage from their hotel, he caught a cab to the airport and boarded the next shuttle to New York. His daughter had been born hours earlier, he was told when he reached Mt. Sinai Hospital. According to the birth certificate, she had arrived precisely one minute before the start of the oral argument.
Back in Washington, all the other members of Phillips’s legal team believed the argument had gone well. Robinson had managed to make his salient arguments without much interruption. Senterfitt must have read the justices the same way. When Reese Marshall made a quick trip to the courthouse men’s room, he was startled when Senterfitt and his colleague William Akerman followed him in. Having apparently lost their appetite for waiting to see how the justices would rule, they wanted to talk settlement. “I told them I thought the bathroom was probably not a good place” to discuss it, recalled Marshall. He quickly excused himself and went to tell Ida Phillips about the overture. She wasn’t interested. By then, said Reese Marshall, “she felt that [the] decision was more important than the money.”72
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On January 25, 1971, Bill Robinson was home sick with the flu when the office telephoned: The Phillips ruling was in. In an opinion just a few paragraphs long, the Court had sided with Ida Phillips. Title VII “requires that persons of like qualifications be given employment opportunities irrespective of their sex,” it wrote.73 “The Court of Appeals therefore erred in reading this section as permitting one hiring policy for women and another for men—each having pre-school-age children.” In other words, a policy that disadvantaged only women—even if not all women were harmed—was sex discrimination. “Sex plus” violated Title VII.
Reese Marshall, who by then had started working in Jacksonville’s public defender’s office, got a call from his former law partner, Earl Johnson, and then phoned Ida Phillips to tell her the news. After some celebratory whoops, Phillips began to cry. According to Marshall, it was especially sweet for both of them that the ruling had been unanimous.
Just one aspect of the Court’s decision betrayed the ambivalence the justices had displayed during oral argument. The Court wasn’t ready to say that Martin Marietta, or employers generally, could never take mothers’ child care obligations into account. Companies would only have to produce evidence sufficient to satisfy the BFOQ loophole to Title VII—which in this case would mean showing that excluding mothers of young children was “reasonably necessary to the normal operation of that particular business or enterprise.”74 “The existence of such conflicting family obligations, if demonstrably more relevant to job performance for a woman than for a man,” said the Court, “could arguably be a basis for distinction” under the BFOQ rule. The case would be sent back to Judge Young for a trial, so that Martin Marietta would be allowed to try to make that “demonstration.”75
Justice Thurgood Marshall joined the Court’s ruling but wrote a separate opinion that chastised the majority for even suggesting that a policy like Martin Marietta’s might qualify for the BFOQ exception. The policy was based on “ancient canards about the proper role of women,” and allowing the BFOQ to sanction such stereotypes was an invitation to employers to keep treating women as mothers first and workers second.76 Citing comments during Congress’s consideration of the provision and the EEOC Guidelines, Marshall argued that the BFOQ should be invoked only sparingly, limited to those “job situations that require specific physical characteristics necessarily possessed by only one sex,” such as where a director is casting a performer to play a particular role that is necessarily sex-specific.77
Subsequent study of the internal colloquies that led to the Phillips ruling have confirmed that at least some of the justices, particularly Chief Justice Burger, were uneasy with giving a full-throated rebuke to Martin Marietta. In The Brethren, Bob Woodward and Scott Armstrong’s behind-the-scenes account of the Court’s deliberations in several seminal cases, the authors documented how Chief Justice Burger’s own biases—which he’d hardly attempted to conceal at oral argument—played into the Court’s deliberations. According to insiders, Burger “strongly supported” Martin Marietta’s policy.
“I will never hire a woman clerk,” Burger told his clerks. A woman would have to leave work at 6 P.M. to go home and cook dinner for her husband. His first clerk back in 1956 at the Court of Appeals had been a woman, he told them. It had not worked out well at all. As far as he was concerned, an employer could fire whomever he wanted and for whatever reason. That was the boss’s prerogative.
When it was suggested that his position amounted to a declaration that part of the Civil Rights Act was unconstitutional, Burger angrily shut off the discussion. He didn’t want to argue legal niceties. His experience showed him that women with young children just didn’t work out as well as men in the same jobs. The employer was within his rights.78
Burger later told his clerks that he’d been outvoted at the justices’ case conference. Keeping the door open for the company to fit its policy within the BFOQ exception was, he told them, “the best that I could do.”79 Burger wasn’t the only one who hesitated before ruling against Martin Marietta. In her meticulously sourced history of how the legal theories of the civil rights movement have informed women’s rights litigation, Reasoning from Race, Serena Mayeri quotes internal Court correspondence showing that Justice Blackmun believed “‘discrimination [not] to hire a woman with pre-school age children has some rationality behind it,’” and later wrote the chief justice, “‘I feel that the less we say by way of explanation, the better.’”80
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As it turned out, Martin Marietta wasn’t interested in a trial. It wasn’t long after the Court’s ruling before the company’s attorneys wanted to talk again about settling the case—this time by phone. Phillips’s lawyers worked with them to calculate what she would have earned if she’d been hired on September 6, 1966, and to negotiate an appropriate amount of back wages (in addition to a nominal amount to reimburse them for their fees).
Even in cases that reach the legal pinnacle of a Supreme Court victory, the grubby reality of tying up loose ends can be less than satisfying for the winner. In the intervening years, Martin Marietta had laid off a number of assembly line workers, including people hired in September 1966. This meant that even if Phillips had gotten the job, she wouldn’t have kept it. She never would have earned those high wages and good benefits that she’d hoped for. So she kept working six days a week at the Ranchhouse, on the 6:30 a.m. to 2:00 p.m. shift.81 (“All we know is work, honey,” she told a reporter at the time, “work and come home and work some more.”82) Moreover, the total wages that Phillips had earned in the meantime also were deducted from the settlement monies. As a result, the company paid Phillips just $13,507.83 She used it to give her oldest daughter, Peggy, a down payment on a house, take her youngest daughter, Gracie, to Disneyworld, and install an air conditioner in her home—the first one she’d ever had.
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Ida Phillips worked as a waitress until 1985 when, at age fifty-one, she died from ovarian cancer. With health insurance a luxury she could not afford, the cancer went undiagnosed until after it had already spread to her lungs. Four years before her death, though, she did finally enjoy some happiness in her personal life: She met and married Ted Roberts, who proved a devoted caretaker. As luck would have it, after Phillips’s death, Roberts and Fred McAlister, Ida’s first husband—who by then had stopped drinking and renewed his relationship with his children—became good friends. They enjoyed referring to one another as “husbands-in-law.”
Although Phillips was conscious of her case’s wider significance—“I feel like I’ve done my part in seeing women get their rights,” she told a reporter at the time84—she never became an outright activist while her case made its way through the courts. Instead, she seemed content to rely on Reese Marshall and her family for emotional sustenance. She and Marshall had made somewhat of an odd pair in segregated 1960s Florida; after it was all over, they enjoyed remembering how Martin Marietta’s good old boy lawyers had “snickered and laughed” when they saw Marshall at the courthouse because he was black and had a limp due to his childhood bout with polio.85
Phillips herself also seemed to relish being underestimated. “I suppose,” she said, “this is my way of letting people know I’m more than just a dumb little waitress.”86