A Class by Herself explores the historical role and influence of protective legislation for American women workers, both as a step toward modern labor standards and as a barrier to equal rights. Spanning the twentieth century, the book tracks the rise and fall of women-only state protective laws-such as maximum hour laws, minimum wage laws, and night work laws-from their roots in progressive reform through the passage of New Deal labor law to the feminist attack on single-sex protective laws in the 1960s and 1970s.
Nancy Woloch considers the network of institutions that promoted women-only protective laws, such as the National Consumers' League and the federal Women's Bureau; the global context in which the laws arose; the challenges that proponents faced; the rationales they espoused; the opposition that evolved; the impact of protective laws in ever-changing circumstances; and their dismantling in the wake of Title VII of the Civil Rights Act of 1964. Above all, Woloch examines the constitutional conversation that the laws provoked-the debates that arose in the courts and in the women's movement. Protective laws set precedents that led to the Fair Labor Standards Act of 1938 and to current labor law; they also sustained a tradition of gendered law that abridged citizenship and impeded equality for much of the century.
Drawing on decades of scholarship, institutional and legal records, and personal accounts, A Class by Herself sets forth a new narrative about the tensions inherent in women-only protective labor laws and their consequences.
About the Author
Nancy Woloch teaches history at Barnard College, Columbia University. Her books include Women and the American Experience and Muller v. Oregon: A Brief History with Documents.
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A Class by Herself
Protective Laws for Women Workers, 1890sâ"1990s
By Nancy Woloch
PRINCETON UNIVERSITY PRESSCopyright © 2015 Princeton University Press
All rights reserved.
Roots of Protection: The National Consumers' League and Progressive Reform
"We have at last won a victory for our 8-hours law," wrote reformer Florence Kelley to German socialist Friedrich Engels on January 31, 1893. The statute, she declared, would be a "milestone" in history and jurisprudence. Kelley had drafted and promoted the 1893 law, which regulated factory conditions, barred labor for children under fourteen, and provided an eight-hour day and forty-eight-hour week for women and teenagers in workplaces and factories. She also headed the team of twelve factory inspectors that enforced the law, of which the eight-hour clause was "by far the most popular." "The working class" wrote Kelley, "eagerly supported the law and strongly and energetically insisted that it be implemented." Chicago employers, however, challenged the law and the state supreme court in 1895 upset its crucial clause on women's hours. The court's decision, Kelley claimed, was "sinister" and "antisocial," rested on a "perverted interpretation," and became "an insuperable obstacle to the protection of women and children." Reformers waited fifteen years for the Illinois court to reverse itself.
Passage of the 1893 Illinois law marked the start of the Progressive Era campaign for protective labor laws. Through law, reformers hoped to impose standards on factories and improve the lives of industrial workers. Within a generation, the states had passed scores of protective laws—child labor laws, maximum hours laws, minimum wage laws, fire and safety laws, and workmen's compensation laws. Resistance to laws that affected men—from courts, legislators, unions, and public opinion—made protective laws for women and children imperative; reformers hoped they would provide precedents for more "general" laws. Thus single-sex laws became a crucial link in protectionist plans. The campaign for protective laws involved a range of supporters but rested largely on a dynamic organization, the National Consumers' League (NCL), its determined leader, Florence Kelley (1859–1932), and the small group of activists that shaped its development.
Protective laws sprang in part from transatlantic roots. Nineteenth-century Europe set the pace. In Britain, France, and Germany, and wherever industry took hold, movements arose to mitigate workplace hazards and to protect the most vulnerable workers. Initially protective laws affected women and children. They imposed exclusions from dangerous types of work and limited hours of work. By the 1890s, protective laws in European states affected much of industry. Once transplanted to the United States, the protective impulse faced a more challenging environment and many obstacles. The us legal system was one such obstacle. Still, Progressive Americans kept a watchful eye on Europe. They strove to emulate the European example and served as conduits for protective precedent.
Well off and well educated, Progressive Americans were (typically) city people who sought to remedy the consequences of industrialization—to fight corporate greed, purify politics, democratize electoral processes, empower the state, and regulate the economy. Middle class or upper middle class, they saw themselves as interlocutors between social classes and as mediators between business and labor. Full of high standards and moral enterprise, Progressives valued order, reason, and efficiency. They appreciated cooperation, experimentation, and investigation; they relied on expertise, professionalism, and social science. Ever inventive, Progressive Americans carved out new types of institutional space between academic life and public affairs. Concerned though judgmental, they often sought to make other Americans more like themselves. Proponents of protective laws shared these attributes.
Maximum hours laws for women workers lay at the cutting edge of the Progressive Era campaign for worker protection. Child labor laws moved most easily through state legislatures but covered less ground than their name suggests. They barred work only for youngsters under a certain age, often twelve or fourteen; older teenagers escaped regulation or, like women, fell under maximum hours laws. A portion of protective laws applied to men, though typically to men in special circumstances. Maximum hours laws reached men employed by state agencies or on public works projects (jobs in which the state was the contractor, such as the construction of public buildings or roads); or in trades that involved public safety, such as railway operation; or in dangerous jobs such as mining. Laws to regulate male labor in other fields or in general, rarely enacted, lacked broad support and invited defeat in the courts. Maximum hours laws for women, however, won a warmer reception. "The American legislator cannot be aroused to much indignation over descriptions of poisonous, dusty, heavy, hot, and filthy work if it is done by men," a reformer wrote. "But this same hard-boiled legislator has a soft side when it comes to women workers" By 1900, twenty-eight states had passed laws to regulate child labor, and over the next fifteen years a majority of states enacted at least some type of measures to regulate women's hours, wages, or working conditions.
Maximum hours laws had a long history in the states. In the 1840s and 1850s, several states—New Hampshire, Maine, Pennsylvania, and Ohio—passed the earliest ten-hour laws. By the century's end, seventeen states had passed similar laws, all weak; they reached mainly employees in public works (men), curbed hours only "in the absence of agreement to the contrary," and lacked enforcement provisions. Laws to limit hours for women and children arose after 1870, mainly in states with textile mills; legislators typically dealt with women and children together. In 1874 Massachusetts, a state with extensive industry—it had many textile mills, which employed a large female workforce—passed a law to limit to sixty hours the work weeks of women and minors; at first, employers could not be prosecuted unless they "willfully" defied the law, but an amendment of 1879 closed this loophole. Similar laws elsewhere lacked impact.
Until around 1890, unions generated demand for a shorter workday, but labor's call for legislation faded; reformers took over. The Illinois law of 1893, with its eight-hour limit for women and young workers in factories, mines, and mills, marked a moment of transition. Still, as was often (not always) the case with protective laws, labor organization lay in the background. Two affiliates of the American Federation of Labor, the Illinois Federation of Labor and the Chicago Federation of Labor (until 1893, the Chicago Trade and Labor Assembly) joined with the Illinois Women's Alliance, a fusion of working-class and middle-class women, to promote the law. The pioneer statute included provisions for enforcement; among the team of factory inspectors run by Florence Kelley, half were women. Although the Illinois Supreme Court in 1895 upset the section of the law that curbed women's hours, other states passed similar laws or improved laws previously enacted. By 1908, when the Supreme Court upheld a crucial Oregon ten-hour law, twenty states had maximum hours laws, usually ten-hour laws, for women in manufacturing.
"Following the work of getting legislation comes the less exciting task of enforcing it," Kelley told the National Consumers' League in 1908. Enforcement problems arose continually. If enforced, maximum hours laws shortened women's long hours in the most exploitative industrial workplaces—laundries, factories, or subcontractors might impose workdays of twelve or fourteen or even sixteen hours—to the number of hours of the typical male employee in industry. In 1900 the average workweek was fifty-seven hours and falling. Workdays for men in sawmills, steel mills, and bakeries remained long; skilled men in trades with strong unions, such as construction or cigar making, worked fifty hours a week or less, but such skilled workers were a small percentage of the male workforce.
As maximum hours laws spread, states passed other types of protective laws for women workers. Most protective laws improved working conditions. They regulated industrial homework (piecework done in workers' dwellings, often in garment production) or required chairs, meal breaks, or rest periods in factories. Several states, led by Massachusetts in 1890, barred night work (from around 10:00 p.m. to 6:00 a.m.), which, reformers claimed, injured health, harmed domestic life, and imperiled morality among women workers; more practically, night work bans made enforcement of maximum hours laws more feasible. Other laws barred women entirely from work seen as hazardous to health or morals, such as jobs in mines or bars. Progressive Era Pennsylvania, for instance, barred women from mines, railroad work, electric welding, work with lead, and from core making, a fume-producing part of the iron-molding process. New York laws of 1899, 1906, and 1913 kept women and children from jobs in factories that operated polishing and buffing wheels, from mines and quarries, and from foundries and core making. Three states (Kansas, Michigan, and Washington), more vaguely, excluded women from dangerous occupations, defined variously as those that might injure health, welfare, or morals; five states prohibited women from jobs that required carrying twenty-five or more pounds; and six states barred employment in the weeks before and after childbirth. Finally, as the drive for protection gained momentum, reformers strove for minimum-wage laws for women workers. Minimum-wage laws evoked far more controversy than maximum hours laws. Still, between 1912 and 1923, fifteen states plus the District of Columbia passed such laws.
To push protective laws through state legislatures, reformers relied on several organizations, each with its own agenda. Progressive professionals in 1906 formed a pressure group, the American Association for Labor Legislation (AALL), led by two economists at the University of Wisconsin, John R. Commons and his student John B. Andrews. The group grew out of a European protectionist venture, the International Association for Labour Legislation (1900–1925), founded in Paris and headquartered in Switzerland. The AALL campaigned for industrial safety laws, workers' compensation, employees' insurance, and health insurance. Its leaders believed that academics, especially social scientists, should engage in public affairs; it saw itself as a middleman between manufacturers' associations and labor unions. From its New York headquarters, the AALL ran annual conferences and a journal, edited by Andrews. Members included reform-minded academics, legislators, factory inspectors, and other state employees, as well as lawyers, journalists, and "social workers," a Progressive Era term for women activists. By 1911, the AALL had two thousand members, mainly men; women members, typically academics and social welfare professionals, included Jane Addams, Florence Kelley, and Andrews's wife, economist Irene Osgood Andrews. Although uneasy with gendered laws, the AALL endorsed protective laws for women workers, on which its women's committee reported.
The campaign for protection drew steadfast support from women's organizations; at the turn of the century a female reform network took shape. The large and powerful General Federation of Women's Clubs (GFWC), started in 1890, gradually shifted its concerns from self-improvement to civic affairs. Ellen Henrotin of Chicago, GFWC president from 1894 to 1898, had ardently campaigned for the Illinois eight-hour law; she urged clubwomen to discuss "civics and social economics" and to start a standing committee on factory working conditions. Clare de Graffenreid, a Washington, DC, reformer, began in 1897 a committee on "The Industrial Problem as It Affects Women and Children" The first speaker, British socialist Beatrice Webb, reminded her audience of its "responsibility for the conditions under which the women of America toil" Thereafter, clubwomen endorsed resolutions to protect women and children; their agenda included mothers' pensions, maximum hours laws, women factory inspectors, and later minimum wage laws. By 1910 the GFWC had almost a million members, at least some involved in "committees on industry" that opposed child labor and overlong workdays. "Get information as to the truth of conditions and spread abroad the knowledge you have gained," urged the head of the GFWC industrial committee in 1910. When "weighty women's groups advocated new measures on behalf of children, and for the sake of women as actual or potential mothers" scholar Theda Skocpol contends, "their demands were hard for legislators to ignore" Among protectionists, clubwomen were numerous and influential; they exerted pressure on civic leaders and public opinion; and their interest intensified over time. With its huge membership rolls, the GFWC provided an arena where proponents of single-sex protective laws could recruit support.
The National Women's Trade Union League (NWTUL), founded in 1903, won public attention in New York's Shirtwaist Strike of 1909-10, when its well-off activists ("allies") joined picketing strikers ("members") to protest employer abuses and demand factory safety laws. The NWTUL sought unionization of women workers and protective laws, ideally as a complement to unions. "The two combined can abolish every industrial evil," the league president declared in 1911. But union formation among women proved difficult, and NWTUL leaders by 1915 shifted toward legislation. Protective laws, they argued, reached more women than would ever join unions and spurred unionization of trades that seemed unorganizable; legislation and organization, the NWTUL claimed, were symbiotic. "If we organized even a handful of girls" declared spokeswoman Rose Schneiderman, "and then managed to put through legislation which made into law the advantages they had gained, other girls would be more likely to join a union and reap further benefits for themselves." The shift to legislation also reflected NWTUL failure to secure recognition from the AFL, whose leaders spoke warmly of unionization of women but rarely advanced it. NWTUL leaders such as Schneiderman and labor organizer Pauline Newman, historian Annelise Orleck observes, "found that it was easier for working-class women to articulate and win entitlements from an expanding state than from male colleagues in their own unions" With initial reluctance—and with dissent among activists—NWTUL leaders turned from organizing to lobbying in state legislatures.
Most pivotal in the protectionist campaign was the National Consumers' League founded in 1898, which held a special place in the world of reform. A counterpart to the AALL, the NCL sought to improve women's working conditions in stores and factories. Its mission, wrote Maud Nathan, the longtime head of the New York City branch, was "Investigate, agitate, legislate." In 1899, Florence Kelley accepted an appointment as general secretary of the NCL, a position she held for three decades. Demanding, commanding, and charismatic, Kelley attracted a devoted following. She pursued protectionist goals with tenacious zeal, galvanized support among networks of women constituents, and lifted the NCL into the front ranks of progressive reform. Building on the achievements of local leagues that formed the NCL, Kelley turned them into a power base.
FLORENCE KELLEY AND THE NCL
The indulged daughter of a prosperous family, Florence Kelley turned naturally to politics. Her father, William Darrah "Pig Iron" Kelley, a fifteen-term Republican congressman from Philadelphia, backed radical Reconstruction policy, helped draft the Fifteenth Amendment (which enfranchised black men), and supported the eight-hour day. Kelley attended Cornell, class of 1882, where she wrote her senior thesis on the legal status of the child. She then studied law and government in Switzerland. When she arrived in Zurich, she later wrote, "the content of my mind was tinder awaiting a match" The "match" was Socialism, an affiliation that shaped her lifelong outlook and tactics. While in Zurich, among émigré East European and German radicals, Kelley married a fellow Socialist, a Polish-Jewish medical student, Lazare Wischnewetzky, with whom she eventually had three children, born in 1885, 1886, and 1888. She also translated the works of Friedrich Engels, for whom she hoped to gain American readers. After Kelley and her family returned to the United States—they moved to New York in 1886—the couple was active in socialist circles. The Socialist Labor Party, which they joined, proved an inhospitable base; the party expelled the Wischnewetskys in the summer of 1887. In 1891 Kelley's husband abused her, her marriage ended, and she fled to Chicago with her children, of whom she won custody in 1892. A divorce followed in 1900. Perhaps Kelley envisioned herself when she wrote in a letter of 1894 about "the woman who asserts her claim to motherhood without the slavery of marriage."
When Florence Kelley moved west, she carried her ideological baggage. As a Socialist of the 1880s, in Europe and New York, Kelley had confronted "the woman question" Should working-class women place their allegiance with their class, and therefore with Socialism, or with their sex, and therefore with feminism? Gender versus class—which mattered more? For Kelley, class trumped gender. Socialism, though not theoretically inconsistent with women's rights, was more important. Kelley explained her position in a salient letter of 1885 to Nebraska suffragist Clara Berwick Colby (1846–1916), founding editor of the Woman's Tribune (1883), a journal that Susan B. Anthony saw as closely attuned to the National Woman Suffrage Association. Kelley began her letter to Colby with some basic socialist algebra. "The inequality between the millionaire capitalist and his employe[e] on the verge of pauperism, on the verge of starvation, is greater than the difference between the millionaire and his wife, and the employe[e] and his wife" she told Colby.
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Table of Contents
1 Roots of Protection: The National Consumers' League and Progressive Reform 5
Progressives Mobilize 6
Florence Kelley and the NCL 11
Rationales: The Perils of Pragmatism 18
Roadblocks: Business and Labor 25
Law: Constraint and Opportunity 28
2 Gender, Protection, and the Courts, 1895–1907 33
Freedom of Contract versus the Police Power 35
A Lowell Mill: Commonwealth v. Hamilton Manufacturing Co. (1876) 38
A Chicago Box Factory: Ritchie v. People (1895) 39
A Utah Mine: Holden v. Hardy (1898) 43
Women's Hours Laws: Pennsylvania, Washington, Nebraska 45
A Utica Bakery: Lochner v. New York (1905) 48
A New York Bookbindery: People v. Williams (1907) 51
3 A Class by Herself: Muller v. Oregon (1908) 54
Local Roots of the Muller Case 55
Muller Goes to Court 58
The NCL Steps In 61
The Brandeis Brief 64
Curt Muller's Brief 70
The Muller v. Oregon Opinion 73
Assessing the Law of 1903 79
4 Protection in Ascent, 1908–23 85
Maximum Hours Cases 87
Night Work Laws 93
Protecting Men 97
The Minimum Wage 103
War and Peace 109
Adkins v. Children's Hospital (1923) 112
5 Different versus Equal: The 1920s 121
Alice Paul, the National Woman's Party, and the ERA 122
The NCL, Social Feminism, and the Minimum Wage 125
Factions Collide: The Women's Movement 130
Close Combat: The Conferences 133
The Women's Bureau Report of 1928 137
Did the Laws Work? Enforcement and Effectiveness 141
Working Women's Voices 145
6 Transformations: The New Deal through the 1950s 152
New Deal Women 153
The Minimum Wage and the Revolution of 1937 158
FLSA: Protection Triumphant 162
The 1940s: War and Postwar 167
Bartending: Goesaert v. Cleary (1948) 174
Women in Unions 180
The Women's Bureau and the NWP 184
7 Trading Places: The 1960s and 1970s 191
The Early 1960s: PCSW and Equal Pay 193
Title VII, the EEOC , and Protective Laws 197
Protection Debated: Pressure and Politics, 1965–69 202
Protection Challenged: Three Landmark Cases 207
Protection Dismantled: The Courts and the States 212
Closing Arguments: 1970 221
The ERA and the Women's Movement 224
8 Last Lap: Work and Pregnancy 235
Pregnancy Cases: The 1970s 236
The Pregnancy Discrimination Act (1978) 242
Toward Family Leave 248
The Toxic Workplace 250
The Johnson Controls Decision (1991) 255
Conclusion: Protection Revisited 261
Looking Back: The Clash over Overtime 263
Moving On: After Protection 267