Social Feminism, Labor Politics, and the Law

Women, the Law, and the Workplace

Sybil Lipschultz

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136070426
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Equal rights for women in the workplace is a critical aspect of the twentieth century civil rights movement, as well as an issue of academic and public interest. Bringing together legal rulings and commentary, this three-volume collection documents the development of legal protections for women in the workplace. The comprehensive coverage encompasses the major legal and constitutional issues, including the legal arguments that lead to the reduction of working hours for women and the argumentation that framed the debates over minimum wage legislation. The set also presents more contemporary issues of gender equality versus gender difference, in matters such as maternity leave and health hazards in the workplace for pregnant women. As the interest in the intersection of law and women's studies surges, this important new collection will become an essential guide to students and scholars, as well as lay readers. This volume is available on its own or as part of the three-volume set, Women, the Law, and the Workplace.. For a complete list of the volume titles in this set, see the listing for Women, the Law, and the Workplace

HOURS AND WAGES:
The Gendering of Labor Standards in America

Sybil Lipschultz

My generation, in its quest for feminist change, has faced many of the same struggles and obstacles in the American legal process as our historical predecessors. We have both become enamored of law as an agent of change, and in the process we have been shaped by the law's existing categories. The limiting effect of legal discourse, which demands social problems be put into legal language plagues feminists today. And there is a tendency to reject as “antifeminist” proposals that attempt to include equality-in-difference because they might fail in court.¹While feminists of different stripes disagree, all feminists must face a changing Supreme Court and an increasingly antifeminist conservatism. On the one hand, the lesson of gendered labor laws seems clear: difference can mean inequality at law. On the other hand, these claims on the law have been a feminist attempt to change society.

In America, the history of labor standards is as closely linked to gender as it is to class.²And the gendering of these standards is rooted in legal ideology and the development of Constitutional law as well as in the political context of that development. Although many contexts are important, my purpose here is to anchor the gendering of labor standards in law to the gendering of the reform community that sponsored and defended these laws.

The Progressive Era's politically active women approached the state differently than men, mostly because they were situated to state power differently. As nonvoting citizens and as political activists who had come together to fight for their rights, women approached the state with a heightened sense of possibility. To them the state was the agency that should make past wrongs right; it was the locus of democracy and equality.³

Influenced as well by female reform activity, women political activists extended and greatly expanded their own feminist politics to the broader society. Employing themselves as “social feminists,” they sponsored policies that created a kind of social democracy for poor mothers, impoverished working women, victims of industrial accidents, and exploited homeworkers.⁴In so doing they re-visioned the notion of “rights.” In a sense they were social democrats and feminists of a certain type. As feminists, they were interested in achieving substantive equality, or different legal treatment in order to gain equal results.⁵

Previous historians have suggested these social feminists looked away from rights and emphasized needs. I would like to suggest that they redefined satisfaction of social and economic needs as rights, and attempted to get that definition written into American law. Nowhere is this more evident than in efforts to obtain maximum hours and minimum wage regulations for women, and eventually for all workers.⁶The efforts to attain both reforms were linked by the same group of social feminists who assumed that one would lead to the other, indeed, that the two would supplement one another. In my argument, hours and wages are also inextricably linked.

Men involved in reform movements to humanize the workplace were primarily interested in stopping socialism and revolution. Expanded state activity in the workplace, they hoped, would limit the abuses of the factory system (particularly “sweating”) enough to quell worker dissent and legitimate the industrial economy of the early twentieth century.⁷Motivated by humanitarian concerns as well, these members of the “Wisconsin School” of industrial reform and active members of national reform organizations, did not focus on gender concerns.⁸

These men, especially social scientists John Commons, Richard Ely, and John Andrews, sought new avenues of social change. Concerned with blending new social science methods and findings with government action, these men focused on reform for workers. Their definition of work revolved around men's jobs; their image of the ''worker” was a robust man involved in a labor union, who had a family to support. For them interest grew in the new “sociological jurisprudence,” so named by Harvard law professor Roscoe Pound. His colleague, Louis Brandeis, and later, Felix Frankfurter, together forged new avenues for social change through legislation and litigation informed by “social reality,” rather than fixed legal principle. In order to change legal principles, someone had to describe social reality; here was a place for social scientific reformers.⁹

These reformers wanted to obtain political acceptance of state regulation of the economy. To stimulate this rather massive change, they knew they needed to find a place to start, an open door. The legal door opener, curiously, was the legal category “woman.” The Supreme Court had hinted at this in the 1905 Lochner v. New York decision where they denied the rights of male workers to limit the working day by law.¹⁰In Lochner the Supreme Court articulated the “unconstitutionality” of limits on the hours of labor for men based on freedom of contract. This doctrine restrained the state from using its police powers to interfere with “freely entered into” employment contracts. In denying state police powers, which would have made labor regulation a matter of welfare, morals, and health of the community, the Court declared that “robust” male workers “did not needtheir health protected.” The bakery owners went even further when they suggested that it was unmanly, even childish, to turn to the state for economic protection. Women, on the other hand, were not seen as “robust.” The assumption of women's relative weakness became the opening door for women's labor laws.¹¹

Lochner v. New York set a precedent where “freedom of contract” would prevail in cases involving men's working hours. New York bakers attempted to show that the state's labor law, limiting their work to ten hours per day, was a health regulation. The Supreme Court decided in 1905 that unlimited hours did not threaten the health of the bakers (even though evidence of ill health was presented), but did consider whether they posed a risk to the general public. Five of nine justices argued that the public was unaffected by the quality of bread produced by tired workers, and struck down the law. This interpretation of the police powers of the state would change as the century progressed.¹²

Women, as Supreme Court justice David J. Brewer later said, were in “a legal category all their own.”¹³This separate status became the excuse to uphold labor legislation for women only, because women could not be subject to the same legal rules as men. Particularly important in keeping women in a separate legal category was an attempt to deny contract rights. Contract rights were significant to labor law; the ideology of “free contract” stood for many generations as a barrier to state regulation of working conditions.¹⁴Since judges tended to portray women as having fewer contract rights than men, no freedom of contract nor political rights, some jurists concluded women were not legally capable of negotiating their own labor contracts.

Taking this cue from the courts, members of the social science community decided to rely on the legal category “woman” to obtain labor laws for all workers. “Women” then became the subject (or perhaps the object) of labor law reform. And in the world of reform, women who were assigned the task of addressing women's labor laws because “women's” jobs in the reform community were as sex-segregated as in the general labor force. Men at the important and male-dominated American Association for Labor Legislation turned their attention to industrial accidents and worker compensation—reforms directed at working men. But the female-dominated National Consumers' League (NCL) sought protective labor legislation exclusively for working women. Thus, in the process of pursuing a policy that would have gendered consequences, reformers themselves became more gender specialized in sponsoring legislation, and their relationships with each other became more gendered as well.¹⁵

The National Consumers' League had not always been litigious. In its earlier days members saw themselves as a pressure group, encouraging female middle-class shoppers to boycott goods produced under exploitative conditions. They developed a “white list” of companies that practiced labor standards, and they issued a Consumers' League label, which companies sewed into manufactured goods to alert shoppers to the League's approval.¹⁶But educational and pressure politics proved fairly limited; NCL members looked for a source of change that would be more reliable and permanent. As social scientists moved in the direction of change through the law, and with state efforts to pass protective legislation for women, the NCL also turned to law as an agent of social and economic change.¹⁷

Florence Kelley, NCL Executive Secretary, became a labor law activist whose purpose was to introduce judges to the idea of a state-regulated workplace through the use of labor laws exclusively for women. As judges grew accustomed to new ideas and became comfortable with the arguments, the NCL planned to introduce labor laws for men, hoping that judicial thinking would extend from one gender to the other.

The fight for a shortened workday for women, which resulted in the landmark Supreme Court case, Müller v. Oregon, would not have been possible without the efforts of the National Consumers' League. Kelle/s experience with factory inspection in Illinois, convinced her of the need for legislation to curb the worst abuses of industrialism.¹⁸Her goal fit well with the broader reform communit...

Table of contents

• Cover
• Full Title
• Copyright
• Contents
• Series Introduction
• Volume Introduction
• Legal Documents
• Historical Documents
• Scholarly Interpretations
• Acknowledgments