Report of the Legal Committee of the National Organization For Women – 1967

TO: The Board of Directors and the members of the National Organization for Women, at the First Annual Conference, Washington, D.C. November 18-19, 1967.

The organizing Conference of the National Organization for Women, at its October, 1966 meeting, authorized a Legal Committee to assist in litigation involving discrimination based on sex. The organizing conference was particularly concerned about the Mengelkoch case which had just been filed in the U.S. District Court, Southern District, California, by women factory workers who were denied promotions to better paying jobs, and denied opportunity to earn time and a half for overtime because of a California law prohibiting women (but not men) from working more than 8 hours per day or 48 hours per week.

The Committee. There are at least 30 members in NOW who are attorneys and judges. We would like to regard every one of them as a member of the Legal Committee and to count upon each of them to serve as court attorney or as consultant, according to their circumstances. My Memorandum to all these members of the bar November 9, 1967 invited them to indicate whether they could serve as an attorney of record and enter appearance and conduct a case when one arose in their home jurisdiction; and whether they would be willing to take a case from beginning, either without fee as a NOW representative, or by referral, for a woman alleging sex discrimination, if the litigant is able to pay reasonable fees.

Because of geographical separation over the country, there have been no meetings of the full committee. Moreover, communication by correspondence has had the handicap of working without operating headquarters and staff. The attorneys in Washington area have met when developments in pending litigation demanded. It has been a single individual, or two or three together, who has carried the burden in each piece of litigation and in other assignments carried out by this Committee. Positions taken in litigation must be correlated through the Chairman so that the Organization might avoid being placed in irreconcilable positions in our efforts to achieve legal equality. It would be my pleasure to name each attorney and give individual credit for his or her efforts. Attorneys from California to New York to Washington, D.C. have worked without fee. However, this report will be made in the impersonal term of “Legal Committee” leaving individual laurels to other channels.

In one short year of existence, remarkable progress has resulted from the devotion and skill of attorney members who have worked in their “Leisure Hours” to contribute to NOW’s drive toward full partnership of women. Within such time, the Legal Committee has served as summarized below.

Bylaws. The Legal Committee hammered out the final draft of national bylaws which was then presented to and approved by the Board of Directors at its February 22-23, 1967 meeting in Chicago as correctly implementing the organizational conference directives and actions. These bylaws were then officially adopted by the corporation as the bylaws of the incorporated NOW.

The Committee was then called upon by the Board to draft standard bylaws for chapters, a task carried out through considerable correspondence. Standard bylaws were ordered and approved to simplify tax exemptions as well as to provide good framework for an organization to grow. After thorough discussion and refinement by the Board of Directors, it adopted a Standard Bylaws for Chapters consisting of 15 Sections. Provision is made therein for the chapter to adopt additional chapter bylaws to implement this necessary framework, and to meet the particular needs of the individual chapter, it being required only that there by no conflict with the standard and required sections. This will now pave the way for needed tax exemptions.

Incorporation. The legal services and drafting of necessary papers together with secretarial services involved, to bring about incorporation of the organization were the work of two members, acting under authority of the Board. A Certificate of Incorporation was issued February 10, 1967 by the Recorder of Deeds, District of Columbia, Washington, D.C. to the National Organization for Women under the provisions of the District of Columbia Non-profit Corporation Act.

Legal Defense and Educational Fund. Members of this Committee have from the beginning approved and urged the establishment of a Legal Defense and Educational Fund within the provisions of Section 501 (c)(3) Internal Revenue Code, which would thus be equipped to attract contributions which would be tax deductible, the fund designed to serve as the medium of giving legal assistance in court litigation. The Board of Directors, meeting in Madison, Wisconsin September 17, 1967 unanimously approved this recommendation of the Committee and authorized and directed the officers of NOW to “proceed forthwith to incorporate such legal and education fund” in New York. One of our prominent attorneys of New York is handling this matter.

Individual requests for legal aid. The Chairman has had aid and assistance of members in processing and replying to some 25 individual appeals for assistance or legal advice in cases of alleged discrimination. This requires the reading and analysis of pages of records and weighing the presented evidence against the law. The cases which seemed to have merit were answered as carefully as possible with our recommendations as to possible courses. We have not been in position of course to undertake to be counsel for these persons from widely separated areas of our country. As chapters grow in number, these instances can have better and more effective action there. We simply did our best on our own time and expense. A funded Legal Defense Fund is needed as the number of reported cases increases.

Court decisions. To the knowledge of this Chairman, there has not been a single court decision which has enforced the sex-discrimination provisions of Title VII. Nor, to our knowledge, has there been a single instance in which the Attorney General of the United States has intervened, as he may do under Title VII, on grounds of sex discrimination. Nor, has there come to knowledge or attention of this Committee, any instance of the Equal Employment Opportunity Commission entering or assisting in litigation where sex discrimination was at issue.

On the other hand, there have been adverse court decisions under Title VII. In Thelma Bowe et al v. Colgate-Palmolive Co. the U.S. District Court Southern District Indiana, handed down a decision on June 30, 1967 upholding company policy regulations under which women factory workers were confined to lower paid “finishing” jobs on the ground that it is proper to “protect” women from jobs requiring the lifting of more than 35 pounds. There was no state law involved; the decision is a limitation on the Federal statute, Title VII in its alleged ban on sex-discrimination which can be broadly expanded to many other restrictions upon women employees. The NOW Board has authorized the Legal Committee to assist plaintiffs on appeal. Three of the plaintiffs only have sought the assistance of our organization.

The case of Mengelkoch v. State of California filed in Federal Court in October 1966, is still undecided. The pleadings therein challenge the maximum hours law of California as a violation of Title VII, and as unconstitutional under the 14th amendment, by denying the right to pursue lawful employment without due process of law and in violation of equal protection of the laws. As authorized, NOW members of the Legal Committee prepared a brief sustaining plaintiffs, which was proffered to the Court as an amicus curiae brief. The brief was later filed as the brief of plaintiff, Velma Mengelkoch, when her original attorney was superseded by a California attorney and member of NOW, the brief being signed by the Chairman of the Legal Committee, and the California attorney. The original attorneys in the case failed to argue and support the 14th amendment issue when the case was heard on a motion to dismiss. This case seeks a special three-judge court on the ground of constitutional issue. If upheld, appeal would lie direct to the U.S. Supreme Court.

Advertising guidelines under Title VII. The Committee prepared a petition filed in December 1966, urging that the discriminatory guidelines on sex-segregated classified advertising in newspapers be rescinded, and that the Equal Employment Opportunity Commission substitute clear and unequivocal guidelines suggested by Congresswoman Martha Griffiths, the wording of which was included. This led to public hearings in May, 1967 by the EEOC on several issues under Title VII, including advertising, state labor laws, and pension and retirement plans. In connection with the May hearings, NOW submitted proposed guidelines on state labor laws as well.

Participation in interviews with officials. The Chairman and other Committee members have participated in face to face interviews by NOW delegations headed by President Friedan, insisting upon serious enforcement of the Sex-discrimination provisions of Title VII: On November 26, 1966 with all members of the Equal Employment Opportunity Commission; on January 12, 1967 with Attorney General Ramsey Clark; on January 13, 1967 with Chairman John Macy, Jr. and all other members of the Civil Service Commission, Mr. Macy being also Special Presidential Assistant.

The Committee has one recommendation: it urges the officers to take such action as will at the earliest possible moment set up and activate a Legal Defense and Education Fund as a means of furthering the most urgent needs of the organization.

In behalf of a loyal group, the Legal Committee:

Marguerite Rawalt, Chairman

1801 16th St. N.W.

Washington, D.C. 11009