For the past century the issue of sex-specific protective labor legislation has divided proponents of women's emancipation and generated debates that have shaped the meaning of feminism, equality, rights, and public welfare. The laws have varied from state to state and over time. But all have designated women a distinct legal class, adopting the notion of fundamental sex difference as their premise. Historically the legislation has derived from the theory that women's unique capacity to be mothers renders them unequal to men in the work force and therefore specially entitled to legal protection. Protective legislation throws into relief the dilemma of equality and difference that has haunted the feminist movement since its advent.
Working women's quest for labor legislation dates from the 1840s, when Massachusetts textile workers unsuccessfully petitioned the state for a ten-hour work day. Over the next few decades, a handful of states imposed such rules. Some of the early laws used gender-neutral language. But the dominant trend was for legislatures to regulate only the hours, wages, and working conditions of women and children.
This trend peaked in the Progressive Era, chiefly as a result of the efforts of female reformers in the Women's Trade Union League (WTUL) and the National Consumers' League (NCL). Founded in 1903, the WTUL aimed to promote female union membership and to educate the public about the needs of women workers. The NCL, created in 1899, sought to organize consumer protest against unsafe and oppressive conditions of labor. Contemporary investigations showed that such work conditions fell hardest on women—especially immigrant women—who were segregated in unskilled, poorly paid jobs and much less likely to belong to trade unions than were men. Cooperating across lines of class and ethnicity, wage-earning women and female reformers lobbied legislatures and provided crucial support when protective laws were challenged in court. As the union leader Pauline Newman declared, in the absence of protection, women "were 'free' and 'equal' to work long hours for starvation wages."
The paradoxical proposition that women could gain genuine equality only through special legal protection was most fully developed by Florence Kelley, the NCL's leader and author of an Illinois statute. Kelley denounced "the cry 'Equality, Equality,' where Nature has created Inequality." Focusing on women's needs as mothers, emphasizing their frailty and dependence, she argued that innate difference justified sex-based legislation.
In the landmark 1908 case Muller v. Oregon, the U.S. Supreme Court affirmed the constitutionality of a ten-hour working day law for female workers. Carving out a gender-based exception to its 1905 holding in Lochner v. New York (which struck down an hours law covering male workers as an unconstitutional interference with individual rights of contract), the Court set its imprimatur on the notion that a "woman's physical structure" and public interest in her "maternal functions" justified protection. No less noteworthy in Muller was the legal brief defending the Oregon law that was jointly written by Josephine Goldmark, of the NCL, and her brother-in-law, Louis Brandeis, soon to be appointed to the Supreme Court. Introducing a new sociological jurisprudence, the famous "Brandeis Brief" presented only two pages of abstract legal reasoning, but over one hundred pages of excerpts from social-scientific studies documenting the perils of overwork for women's "special physical organization." Buoyed by Muller, the NCL led the campaign for an extended web of sex-based labor laws. By 1925 all but four states limited women's work day, sixteen states banned female night work in certain jobs, and thirteen states fixed minimum wages for women.
If arguments for protection on grounds of sex difference held sway with lawmakers, by the 1920s they clashed with the agenda of the National Woman's Party, which championed an Equal Rights Amendment. This wing of the women's movement eschewed maternalist rhetoric, insisting that special legal treatment obstructed the hiring of women and reinforced their inequality in the labor market—that difference meant discrimination. As Harriet Stanton Blatch argued, women were "ready for equality." But to the ERA's opponents, this was "hysterical feminism with a slogan for a program." The controversy intensified with the Supreme Court's 1923 decision in Adkins v. Children's Hospital, which declared a minimum wage law unconstitutional in the name of women's equal rights of free contract. Though both sides claimed to represent all women, neither addressed the exclusion of domestic and farm workers—the great mass of working women of color—from the laws' protection.
Today, gender-neutral labor laws have displaced many sex-based precedents. The legal revolution of the New Deal culminated in the Supreme Court's validation of the 1938 Fair Labor Standards Act, which set national wage and hour rules for men and women alike. The 1993 Family and Medical Leave Act, abandoning a special treatment model based on female physiology, guarantees workers of both sexes unpaid leave to care for a new child or a sick family member. Yet the underlying conundrum of equality and difference—of formal rights and special needs—remains at the heart of feminist debate.
Amy Dru Stanley
See also
Equality and Difference;
Muller v. Oregon;
Women's Trade Union League.
