Strengthening the Weaker Sex

Of the 5,400 people that the Libbey-Owens-Ford Co. employs to make glass in Toledo, only 200 are members of the "minority" group that makes up more than half the city's population. Just like their fellow workers, they want overtime pay and a crack at the tough jobs that lead to advancement. But because they are women, a state law bars them from working more than nine hours a day or six days a week and from regularly lifting more than 25 lbs. The women also charge that company policy makes them the last hired and first fired. Taking their side last week, the U.S. Justice Department filed its first suit demanding an end to such job discrimination.

The Ohio law resembles those enacted by many states at the turn of the century to protect the "weaker" sex from harsh working conditions. Now a growing band of lawyers argue that if the laws are used to bar women who want such work, the result is precisely the kind of discrimination forbidden by Title VII of the 1964 Civil Rights Act. Although the ban on sex discrimination was added to that law as a wry joke by Southern Congressmen opposing civil rights for blacks, complaints involving women now make up nearly one-quarter of those brought to the federal Equal Employment Opportunity Commission.

No Conciliation. The Libbey-Owens-Ford case was started by Mrs. Nancy Raitz, 35, a former $2.50-an-hour assembler. Last year she and 32 other female employees complained to the EEOC. The company argued that it was merely obeying the state law. When the commission's conciliation attempts failed, it recommended that the Justice Department bring a full-scale court test.

The suit charges Libbey-Owens-Ford and the United Glass and Ceramic Workers of North America and its Local 9 with barring women workers at some of the company's Toledo plants. Women who get hired in other plants, the suit charges, are restricted to "less desirable and lower-paying jobs," and "subjected to a high frequency of layoff."

Self-Reliance. In deciding the case, the U.S. district court in Toledo could hold that the federal statute overrules the state law. But it could also take up the question of whether "female-protective" laws violate the 14th Amendment's guarantee of equal protection to "any person" or its insistence on due process for all. For years, lower courts have upheld separate treatment for women, often citing a 1908 Supreme Court decision that approved different standards for the sexes because of differences "in structure of body, amount of physical strength [and] in self-reliance." In a new case to be heard next fall, however, the court may accept the feminist idea that distinctions based on sexual stereotypes are no more valid than the racial ones that once justified segregation.

Emerging standards for women's rights are likely to leave some jobs in which employers can insist on sex as a bona fide occupational qualification. Though telephone companies have been obliged to hire male operators and bars to take on female bartenders, the EEOC has ruled that actresses can still monopolize female roles--and presumably, jobs as topless dancers. Eventually, says University of New Mexico Law Professor Leo Kanowitz, the courts may have to decide such issues as whether, if women have equal rights, they also have equal liability to be drafted.

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