Video: Ledbetter: 'I feel vindicated'

By Pete Williams Justice correspondent
NBC News
updated 10/16/2009 11:30:15 AM ET 2009-10-16T15:30:15

A woman's "paramount destiny and mission," a U.S. Supreme Court justice once wrote, is to fulfill "the noble and benign offices of wife and mother."

Decades of action by Congress and the courts eventually broke down many of the barriers that kept women from the American workplace. But the changes were slow in coming, and advocates for women say tougher legal protections are still needed.

In explaining his view in 1873 that a woman's role was to be wife and mother, Justice Joseph Bradley said the "natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life."

He joined the court's majority as it ruled, by a vote of 8-1, that an Illinois woman, Myra Bradwell, had no constitutional right to practice law.

Nearly a century later, many members of Congress laughed at the idea of including women in the landmark 1964 Civil Rights Act. In fact an opponent of the bill, intending to doom its prospects, jokingly suggested that it should also ban discrimination based on sex.

Women needed legal protection, said Rep. Howard W. Smith of Virginia, to achieve "their right to a nice husband and family."

The joke was on him. Not only did the bill pass, but its Title VII also outlawed employment and housing discrimination on the basis of "race, color, religion, sex, or national origin."

"It was the bedrock of the early legal protections," according to Nancy Duff Campbell, Co-President of the National Women's Law Center.

"The law was important," she said, "in hiring, promotion, and pay, but it also helped get women into jobs like firefighters and police officers, by striking down tests that were used to keep them out."

Throughout the 1970s and 80s, the courts gradually shed old notions that permitted legal distinctions between men and women, stereotypes that Justice William Brennan called "outdated misconceptions concerning the role of females in the home rather than in the marketplace and the world of ideas."

In 1996, the court struck down the male-only admission policy at the Virginia Military Institute, an opinion written by Ruth Bader Ginsburg, who had argued a series of cases expanding women's rights as a lawyer for the ACLU.

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But for more than a decade after the enactment of the Civil Rights Act, the task of defining legal protections for pregnant women on the job puzzled the courts. In 1976, the Supreme Court held that employers could not be sued over excluding coverage for pregnancy in their health insurance plans.

Key 2008-2009 Supreme Court casesSuch an arrangement wasn't sex discrimination, the court reasoned, but a distinction between pregnant and non-pregnant employees. Congress responded with 1978's Pregnancy Discrimination Act, requiring employers to treat pregnancy like any other physical condition that temporarily disables their personnel.

"Before that law was passed," says Nancy Duff Campbell, "women got fired when they became pregnant, particularly teachers. God forbid a child might see a pregnant woman."

Another act of Congress, Title IX of the Education Amendments of 1972, is popularly thought of as the law that required equality for women's sports, even though athletics is not even mentioned in the statute. Title IX's more far reaching effect has come in the classroom, increasing student enrollment and opportunities for women faculty members.

"The ivory tower fought like mad," recalled Eleanor Smeal of the Feminist Majority Foundation.

"They would say to us, 'If we make decisions about hiring and enrollment on the basis of merit alone, these schools will become predominately female institutions, and men won't want to go.'"

She notes that women now account for 60 percent of enrollment in the nation's community colleges, where the average age is 29.

"It's a second chance for women who became mothers at an early age," Smeal says.

Women's rights advocates say the Supreme Court's 1973 abortion ruling in Roe v. Wade must also be counted among key rulings that helped women enter the workplace in greater numbers, along with earlier decisions that struck down laws against contraceptives.

"If women have more control over their reproductive choices, they don't have to stay home and be mothers," said Nancy Duff Campbell of the Women's Law Center.

Further changes in the law, including 1993's Family and Medical Leave Act, "allow women to move in and out of the workforce to have children without losing their jobs," she added.

In spite of the legal advancements, barriers remain. Federal laws controlling government contracting bans discrimination based on race but not on the basis of sex.

Women's rights groups also call for more aggressive enforcement of laws requiring child support payments and family leave benefits. Better child care would also ease the burden on working mothers, they add.

The Feminist Majority Foundation's Eleanor Smeal says legal protection for women would be much stronger if the proposed Equal Rights Amendment had been adopted.

"It's a miracle how far we've come with such weak laws," she said.

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